Intellectual Property Rights in Mauritius

Intellectual Property (IP) is now increasingly recognised as an economic asset as

more and more sectors of the economy become knowledge-based. In the light of our
ambition to become a cyber island and a major duty-free trading center, the capacity to
capitalise on IP assets will be a determining factor in the development of our economy
during the next decade. Economic operators need to be sensitised on the issue. The
Chamber is working in this direction, namely with the organisation of a workshop on IPR
(Intellectual Property Rights) in September 2005, in close collaboration with the Economic
Mission of the French Embassy.

As a term, intellectual property is increasingly being used today. However, its mechanism
and business aspects are not well understood and to many companies, it remains an obscure legal
concept of little relevance to day-to-day business. Yet, intellectual property in the form of
information, technology, industrial designs, trademarks, formulas for new products and processes,
inventions and know-how hold a tremendous potential for wealth creation. And this potential is
simply wasted in the absence of a proper mechanism for the enforcement and protection of IP
rights. Moreover, with the cut-throat competition now prevailing on the global market,
competitive advantage depends increasingly on innovation and creativity, which are encouraged
by the mechanism of IPR.

In Mauritius, the legislative framework for IPR enforcement initially provided for the
protection of copyrights, trademarks, patents, with the Patents Act 1875, the Trademarks Act
1868 and the Copyright Act 1956 being the oldest legislation. Our IPR enforcement mechanism
took a new turn in 1995 when the TRIPS (Trade Related Aspects of Intellectual Property Rights)
Agreement of the World Trade Organisation came into effect. In order to conform our legislation
with the principles and obligations laid down in the TRIPS, new pieces of legislations were
adopted, namely:

1. The Copyright Act 1997

2.The Patent, Industrial Designs and Trademarks Act 2002
3.The Protection Against Unfair Practices (Industrial Property Rights) Act 2002
4.The Layout Designs (Topographies) of Integrated Circuits Act 2002
5.The Geographical Indications Act 2002

The Copyright Act covers protection of artistic, literary and scientific works created or
published by an author who is a citizen of Mauritius or having his habitual residence in Mauritius
or in any country party to the Berne Convention for the Protection of Literary and Artistic Works.
The Act guarantees protection of the economic and moral rights of the author and this protection
is not subject to any formalities. Economic and moral rights relating to the work of an author is
protected during his lifetime and 50 years thereafter, while the rights relating to a photographic
work is protected until the expiry of 25 years from the making of the work.

Under the Patent, Industrial Designs and Trademarks Act, an invention may be protected
for a period of 20 years, subject to payment of an annual fee. Trademarks may be protected for an
initial period of 10 years and may be renewed for consecutive periods of 10 years. The
registration for industrial designs is for an initial period of 5 years and renewable for another
period of 5 years. The Act also provides for renewal for 2 further consecutive periods of 5 years
subject to certain conditions.
 The Protection Against Unfair Practices (Industrial Property Rights) Act protects against
unfair practices arising on the basis of industrial property rights. It provides for instance that
causing confusion with respect to another’s enterprise or damaging another’s goodwill or
reputation amounts to an unfair practice punished by fines of up to Rs 250,000 and terms of
imprisonment of up to 5 years. The Act more specifically targets unfair practices involving the
use of a trademark, trade name, a business identifier, the appearance of a product, the presentation
of products and services.

The Geographical Indications Act provides for a system of protection of geographical

indications in the context of the obligations undertaken by Mauritius under the TRIPS
Agreement. A Geographical Indication (G1) is defined as an indication which identify a good or
goods, as originating in the territory of a member or a region or a locality of the territory where a
given quality, reputation or other characteristic of the good is attributable to its geographical
origin. The Act renders unlawful the use of a GI for identifying a wine or spirit not originating in
the place indicated by the GI in question, a practice which may give rise to a claim in damages
and to criminal sanctions. This legislation has however not yet been proclaimed.

The Layout Designs (Topographies) of Integrated Circuits Act enunciate the basic
principles regulating the protection of layout designs of integrated circuits. Protection of
integrated circuits constitutes a relatively new area. It has not featured in the legislation of several
countries for many reasons, one of them being the absence of technical knowledge or expertise
for the mass design of integrated circuits. It is to be noted that this legislation has not been
proclaimed either.

The institutional framework for IPR enforcement is made of a number of bodies and
institutions. The Industrial Property Office, under the aegis of the Ministry of Foreign Affairs,
International Trade and Regional Cooperation, is responsible for processing registrations of
patents, trademarks and industrial designs. An Industrial Property Tribunal has been created to
rule on cases such as rejected applications for registration. As far as copyrights are concerned, the
Mauritius Society of Authors administrates the economic rights of copyright owners and
exclusive licensees, grants authorisation for the use of protected works and is responsible for the
collection and distribution of royalties. Moreover, the Ministry of Arts and Culture operates a
Copyright Desk responsible for information to the public and registration matters. The Anti-
Piracy Unit of the Police and the Customs Authorities also play a crucial role in the enforcement
of IPR by intercepting counterfeits and pirated goods.

The above overview of our legal and institutional framework for IPR enforcement gives a
clear indication of a willingness to provide the right protection for legitimate owners of
intellectual property rights. However, our IPR system is relatively young and needs a number of
improvements and consolidation to live up to future challenges.

First of all, there is a need to develop and reinforce our national intellectual property
infrastructures. The creation of a single organisation to deal with IPR and regrouping the various
departments and organisations mentioned above may be envisaged, for increased efficiency and
coherence. Adequate human resources and expertise in the field is essential in order to avoid long
time delays for procedures such as processing patents, trademarks and other applications.
 The fight against piracy and counterfeiting must be reinforced. The duty-free island
project can lead to the development of a parallel economy if counterfeit and piracy continues to
flourish on the island. Moreover, our capacity to attract foreign investors will depend a lot on the
protection being guaranteed to IP. Indeed, no brand owner would be interested in opening retails
shops in Mauritius knowing that fake copies of his goods are being sold at much lower prices by
the street hawker.

At the policy and regulatory level, a number of developments would be well received.
For instance, acceding to the Madrid Protocol would give Mauritian trade marks holders the
possibility of being protected in a number of Member Countries with just one application, saving
much time and money by foregoing the trouble of undertaking multiple application procedures.
The same applies to the Hague Agreement for the protection of industrial designs and the Patent
Cooperation Treaty for obtaining international patent protection.

Sensitisation campaigns on the importance of IPR should be organised. An IPR

enforcement mechanism, as up to the mark and sophisticated as it may be, is useless if the right
holders themselves do not exercise their rights. And very often, such a failure on the part of
creators, inventors, researchers, authors to exercise their rights comes from ignorance whereby
the importance of diffusing information and increasing awareness. Moreover, economic operators
also need to know what are the implications of illegal exploitations of IP and what the law
expects them to conform to. The joint MCCI-French Embassy workshop scheduled for September
will hopefully fulfill this sensitisation purpose among members of the Mauritian Business
Community as well as counterparts in the public sector.

The workshop, conducted by leading experts in the field of intellectual property rights,
will target business operators in the private sector as well as officials from institutions which play
a forefront role in fighting counterfeiting and piracy. The objective will be to sensitise economic
operators on the value of intellectual property as an asset and the importance of investing in its
protection. It will also mark the beginning of a close collaboration between the public and private
sectors in promoting protection of IPR and controlling counterfeiting and piracy in Mauritius, as
our country takes the leap into the knowledge age.

Anjana Khemraz
Analyst-Legal and Business Facilitation Division