IP protection and enforcement in Egypt
Civil code systems place a greater emphasis on the written law, while common law courts help shape the law through judicial opinions that must be applied in other cases. In civil law systems, courts also take a greater role in fact-finding, often relying on an expert body to advise the court.
The expert body will not involve itself in a matter without appropriate authorisation in the applicable regulations or decree, and if such documents do not cover all of the subject matter that is implicated by a controversy, a complainant’s intellectual property (IP) infringement case may come to a standstill.
Overview of IP rights in Egypt
Law 82 of 2002
The main IP law in Egypt is Law 82 of 2002 (Law 82/2002), which replaced a collection of laws dating back to 1939 with a comprehensive IP code as part of an effort to bring Egypt into compliance with its obligations under different international agreements.
The four ‘books’ of the new code address patents, integrated circuit designs, undisclosed information, trademarks, geographical indications, trade statements, industrial designs, copyright and related rights, and plant variety protection.
Law 82/2002 generally attempts to mirror the provisions of the Agreement on Trade-Related Aspects of IP Rights (TRIPs).
International agreements
Egypt is a contracting party to the following WIPO-administered (World IP Organization) treaties:
• Berne Convention: entry into force June 7, 1977
• Hague Agreement: entry into force July 1, 1952
• Madrid Agreement (Marks): entry into force July 1, 1952 Abdel Wahab moustafa Mona Bakir & Son Office
• Madrid Protocol: entry into force September 3, 2009
• Nairobi Treaty: entry into force October 1, 1982
• Nice Agreement: entry into force June 18, 2005
• Paris Convention: entry into force July 1, 1951
• Patent Cooperation Treaty: entry into force September 6, 2003
• Phonograms convention: entry into force April, 23 1978
• Strasbourg Agreement: entry into force October 17, 1975
• Trademark Law Treaty: entry into force October 7, 1999
• WIPO Convention: entry in force April 25, 1975 In addition to Law 82/2002, international agreements to which Egypt is a party are considered to be Egyptian law.
Executive regulations and decrees
The Executive Regulations for Law 82/2002 were issued in Cabinet Decree (No 1366) of 2003 for Books 1, 2, and 4, and in Prime Ministerial Decree (No 497) of 2005, for Book 3 of the law. The regulations have been amended by Prime Ministerial Decree No 1241/2006, which deleted some articles in the regulations for Book 4, and by Prime Ministerial Decree No 2202/2006, which amended the Book 3 regulations.
The Executive Regulations primarily address procedural issues that are not specified in the law. IP issues are also addressed in border measure regulations, which are implemented jointly by customs and the Trade Agreements sector of the Ministry of Trade and Industry, as well as in regulations implementing the consumer protection law.
Additionally, Egypt’s IP law is also implemented through a series of decrees that further clarify procedures and, in some instances, modify the application of the regulations to improve implementation. The adoption of decrees to clarify the application of the IP law remains an ongoing process.
The judicial system
Egypt’s civil law system limits the reach and influence of appellate court decisions. An exception to this general rule is the Court of Cassation, the highest court in Egypt. Court of Cassation decisions have the force of law and, as in common law courts, its decisions that apply and interpret the codified law are binding precedents on other cases involving similar issues.
Decisions that are issued by the Cassation Court are published. No record is kept of decisions that are issued by the appeal and first instance courts. Egypt’s administrative court is called the State Council. The State Council has jurisdiction to decide any disputes involving an administrative body. For instance, the State Council is competent to consider claims that are related to decisions of the patent office, as well as decisions of the Commercial Registry Department in trademark and industrial design applications.
In April 2008, Law No 120/2008 was passed, establishing the Economic Courts. These courts have jurisdiction to decide cases that are related to economic and commercial matters, including those involving IP rights. The courts began operation on October 1, 2008.
Effect of recent changes in the law
The adoption of Law 82/2002 brought about significant changes. It introduced for the first time a system of protection for integrated circuit topographies, geographical indications and new plant varieties. It expanded trademark protection to include well-known marks and expanded patent protection to include pharmaceutical products.
Under the earlier patent law, patent protection was available for chemical processes for foods and pharmaceuticals but not for the resulting products. Law 82/2002 also expanded the protection for undisclosed information. Expanding the types of IP that are protected in Egypt presents new challenges for the IP offices, enforcement officials and courts.
People seeking the benefits of this expansion in legal protection may experience delays as procedures are developed to address issues that are new to Egypt. In addition to expanding the types of protection available in Egypt, Law 82/2002 strengthened the IP system by mandating a full examination system for patents and industrial designs.
Under the previous industrial designs law, the industrial designs office lacked legal authority to refuse registration to any application, with the result that applications known to be legally insufficient were sometimes accorded registration.
Law 82/2002 also introduced specific provisions on enforcement, with an emphasis on conservatory measures such as seizure of goods to determine infringement and preserve evidence, and in some cases seizure of the implements of infringement and disposition of the infringing goods.
In the past, injunctions have not been frequently granted in Egyptian courts, but judges have now begun issuing injunctions in appropriate IP cases, and there have been a number of cases in which the courts imposed maximum penalties in criminal cases and issued commercially appropriate damage awards in civil cases.
Enforcement is primarily addressed through the criminal law, with the possibility of a civil suit based on a showing of criminal infringement. Egypt promotes stronger enforcement by providing an IP unit in its police force as well as teams of civil inspectors who are authorised to remove infringing goods from the market. However, despite recent improvements, civil enforcement remains a challenge for several reasons.
Civil recovery is available only when the more restrictive elements of criminal infringement can be shown; the hearing of a civil case is delayed until completion of the criminal case; there can be difficulties with obtaining service of process and enforcement of judgments; and pursuing a case through Egypt’s overburdened court system can take many years before relief is finally obtained.
Preventing the entry of infringing goods into Egypt is not specifically addressed in Law 82/2002. However, regulations have been subsequently adopted to permit a complaint to be filed, but only where the IP owner can supply specific information regarding a particular shipment, including its bill of lading number.
Egypt has PCT search authority
The Egyptian Patent Office is an International Searching Authority and International Preliminary Examining Authority (ISA/IPEA) under the Patent Cooperation Treaty (PCT), and it can accept applications for patents from all over the world.
Egypt became PCT authorities during international meetings of the General Assembly of the World Intellectual Property Organization (WIPO) in September 2009. The Egyptian Patent Office’s request was unanimously adopted after an integrated presentation from the Egyptian delegation, which highlighted the potential and suitability of the Egyptian Patent Office.
The presentation showed that the office had the required facilities to be an ISA/IPEA, including 115 researchers in all disciplines and relationships with Egyptian universities and research centres. Egypt’s appointment as an ISA/IPEA came after years of preparation by the Egyptian government to make Egypt only the third developing country to be a PCT authority, after Brazil and India, in 2007.
Moreover, Egypt is considered to be the first country in Africa and the first country in the the Middle East to be appointed as an ISA/IPEA under the PCT.
The key advantage of Egypt becoming an ISA/IPEA is that patent applications in the Arabic language can be accepted at the international phase of PCT. Another advantage is that it enables the Egyptian Patent Office to continue its work with other patent offices in African and Middle Eastern countries through the provision of international services for those offices.
The Egyptian Patent Office can accept patent applications from all PCT member states at the international phase of the treaty. It can also make an international search report and an international preliminary examining report under the PCT in Arabic or English from any member of the League of Arab States.
Egypt’s appointment as an IPA and IPEA reflects the country’s efforts to promote its scientific research base by enhancing its ability to look into the merits of inventions at the global level, which is something that traditionally only patent offices of advanced industrial countries could do.
It is also a major step forward that Egypt’s appointment has led to patent applications being accepted in the Arabic language and that it has helped the Egyptian Patent Office in its work with patent offices of Middle Eastern and African countries.
