Trademark Registration

1. Law dealing with Trademarks in DRC

● Industrial Property Law no 82-001 of 1982
● Industrial Property Regulations, 1989

2. Trade mark protection in DRC
The Law provides for the registration of trademarks for goods and services, for collective marks, for manufacturing marks, and for national warranty marks. The Law states that the filing of a mark is compulsory for each commercial operator.
Applications may be filed as national applications and, in appropriate circumstances, claiming convention priority in terms of the Paris Convention.

3. Protection of well-known marks in DRC
There is no express provision to protect well-known marks.

4. Types of trademarks in DRC
Provision is made for the registration of trademarks for goods and services, and for collective trademarks.
The Law also refers to manufacturing marks and national warranty marks. However, these types of marks are not defined, and there are no specific provisions, which relate to their registration or use.

4.1. Definition of a trademark in DRC
A mark is defined to mean a distinctive sign that permits different objects or services of a specific commercial company to be recognised or identified. Signs which may serve as a mark include a name or denomination, letters, figures or a combination of letters and figures, seals, slogans, emblems, piping, edging, combinations or arrangements of colours, drawings, reliefs or mottos.

The following signs will not be registrable :

● signs which would be contrary to public order or decency
● coats of arms, flags or national emblems
● signs or indications likely to mislead the public.

4.2. Definition of a collective trademark in DRC
 Collective marks are defined as marks which serve to distinguish one or more common characteristics of products or services provided by different undertakings, when the marks are affixed under the control of the group or organisation that is the holder of the mark.

5. Classification of Trademarks in DRC
The International Classification of Goods and Services (Nice Classification) is applied.

6. Convention priority in DRC
The DRC is a member of the Paris Convention. An applicant who has applied for a trademark in another convention country is entitled to a priority right to be accorded the same date as the earlier application.

7. Application of Trademarks in DRC
An application is filed at the Department of Industrial Property or a regional department of government.

The following information and documents are required:

● full particulars of the applicant
● power of attorney (simply signed), in French
● list of goods or services to be covered
● reproduction of the mark
● certified copy of priority document (if applicable), with certified French translation.

8. Examination/procedure in DRC
The application is subjected to formal and substantive examination. If the application meets the formal and substantive requirements for registration, it will be published. The applicant will be notified that the application has proceeded to grant.

9. Opposition in DRC
The Industrial Property Law makes no provision for opposition. However, any interested party, including the Public Minister, may invoke the nullity of a mark.

10. Duration and renewal of Trademarks in DRC
Trade marks are registered for a period of 10 years from the filing date. A mark registration is renewable upon request for further periods of 10 years, and upon the payment of the prescribed fee. A grace period of six months is allowed for such payment, provided that a penalty is paid.

11. Use requirement and cancellation of Trademarks in DRC
A mark must be used in the course of trade within three years of the date of its registration, failing which interested persons may apply to cancel the registration.

12. Rights conferred by registration of Trademarks in DRC
The registration of a trademark gives the owner the right to use and exploit the mark, and to allow others to use and exploit the mark.

13. Marking of goods in DRC
The Law provides that, under certain circumstances, the bringing of certain marketable products onto the market shall require the prior affixation of the national warranty mark. The purpose of the national mark is to certify the quality of merchandise.

Design Registration

1. Law dealing with Designs in DRC

● Industrial Property Law no 82-001 of 1982
● Industrial Property Regulations, 1989

2. Design protection in the Democratic Republic of Congo [DRC]
Protection for industrial designs is available in the DRC only by way of a national filing. As the DRC is a signatory to the Paris Convention, such a national filing can claim convention priority.

3. Registrable subject matter of Designs in DRC
According to the Law, an industrial design is understood to include any assembly of lines and/or colours intended to give any industrial or artistic article a distinctive appearance. It is further understood to include any plastic shape, whether associated with colours or not, and/or any industrial or artistic article that can serve as a model for manufacturing of other similar articles and which can be distinguished from similar articles, either by a distinct or recognisable configuration that gives it a novel character, or by one or more external effects giving it a specific and novel appearance.

It is important to note that the Law provides that, for the purpose of pursuing protection, the same creation cannot be considered as being an invention and also a design or an industrial model. If the same creation has features that could be susceptible both to industrial design and patent protection and these features are inseparable from one another, only those features relating to the invention shall be susceptible to protection.

The following subject matter is regarded as not being susceptible to design protection:

● any industrial design or model that is contrary to public order or decency
● any industrial design or model, the shape of which has been designed for technical or industrial purposes to such an extent
that it is inseparable from the desired result
● any reproduction or servile imitation of a natural design or model.

4. Application for Designs in the DRC

Foreign applicants must be represented by a local agent like us.

Filing requirements are as follows:

● full particulars of the applicant
● power of attorney (notarised), in French (a copy of the signed power of attorney is required on the day of filing)
● assignment document (if applicable; notarised), in French
● drawings or representations of the design
● certified copy of the priority document (if applicable), with a sworn French translation of the first page thereof.

 A single application can cover up to 50 designs.

5. Convention priority
An applicant who has filed a design application in a convention country is entitled to claim priority from such earlier application, provided the DRC application is filed within six months of the filing date of the earlier application.

6. Novelty
Novelty is determined on the same basis as for inventions, and it is regarded as being new if it does not form part of the current state of the art at the effective date of the application. The current state of the art comprises everything that is or has been made available in the public domain before the priority date of the design application, whether such availability occurred through a written or verbal description, through use or in any other way.

7. Duration and maintenance of Designs
The initial term of the design registration is five years, being extendible upon payment of renewal fees for a further five-year term. The term of the registration starts from the date of application for registration. A six-month grace period for paying the renewal fee is provided. If the renewal fee is not paid, the registration lapses.

Marking and working are not required. Falsely indicating that a design/model is a registered design subjects the offender to imprisonment and/or a fine.

Patent Registration

1. Laws dealing with Patents in the DRC

● Industrial Property Law no 82-001 of 1982
● Industrial Property Regulations, 1989

2. Patent protection in DRC
Patent protection is available in the DRC by way of a national filing. The DRC is a signatory to the Paris Convention and a national filing can claim convention priority. The DRC is not a member of the PCT, ARIPO, or OAPI. It is to be noted that foreign applicants must be represented by an agent in the DRC. Our Law Firm can represent you.

3. Patentable subject matter in DRC
Under the concept invention, the Law includes any subject matter that, as a result of inventive activity, is capable of being used industrially or commercially.

The following subject matter is not regarded as being patentable:

● theoretical or purely scientific principles and conceptions

● creations that are purely ornamental in character

● financial or accounting methods, the rules of games and all other systems having an abstract character, including, in particular, programs or a series of instructions for carrying out the operations of a computer (ie computer programs)

● subject matter, the publication or use of which would be contrary or present a threat to public order, the security of the state
or public decency

● the discovery of an object that already exists in nature .

Additionally, in order to be patentable, the subject matter for which patent protection is being sought must be new, involve an inventive step and be capable of being used in commerce or industry. The requirement of novelty is discussed in more detail below.

The Law provides that an invention relating to a pharmaceutical invention can only be patented if its object is a product, a substance or a composition that is introduced for the first time in the form of a pharmaceutical.

4. Types of applications for patents in DRC
Application for a patent may be made by way of:

● a non-convention application, the effective date of which is the filing date of the application
● a convention application, the effective date of which is the filing date of the priority application on the basis of which
convention priority is being claimed
● an application for a patent of improvement, the effective date of which is the same as that of the main patent on which it is
based
● an application for a patent of importation, the expiry date of which is the same as that of the foreign patent on which it is
based
● a divisional application, the effective date of which is the same as the initial application.
 
4.1. Application of patents in DRC

For a patent of invention to be granted, the following documents are required:

● full particulars of the applicant
● power of attorney (notarised), in French (a copy of the signed power of attorney is required on the day of filing)
● specification (including claims, drawings and abstract), in French
● international classification
● certified copy of the priority document, with a sworn French translation of the first page thereof
● assignment of invention (notarised; if applicable), in French or with French translation.
For a patent of importation to be granted, the following documents are required:
● full particulars of the applicant
● power of attorney (notarised), in French (a copy of the signed power of attorney is required on the day of filing)
● specification (including claims, drawings and abstract), in French
● the number, filing date, priority details and remaining period of the granted foreign patent on which the patent of importation
is to be based
● certified copy of the granted foreign patent and a sworn translation thereof in French
● international classification
● assignment of invention (if applicable; notarised), in French or with French translation.

4.2. Novelty of patents
An invention is regarded as being new if it does not form part of the current state of the art at the effective date of the application. The current state of the art comprises everything that is or has been made available in the public domain before the priority date of the patent application, whether such availability occurred through a written or verbal description, through use or in any other way.

5. Convention priority
An applicant who has filed a patent application in a convention country is entitled to claim priority from such earlier application, provided that a DRC application is filed within 12 months of the filing date of the earlier application.

6. Examination/procedure
Applications are subjected to formal examination. Once all the formal requirements have been complied with, issuance of a DRC patent can be expected within about two to three years after the application filing date.

7. Duration and maintenance
Patents of invention are granted for a maximum term of 20 years. Patents of invention relating to pharmaceuticals are granted for a maximum term of 15 years. Both of these periods are calculated from the filing date of the application.

Patents of importation expire at the same time as the foreign patent on which they are based. Patents of improvement expire at the same time as the parent DRC patent on which they are based. Maintenance fees are payable on granted patents and pending applications, and the first maintenance fee falls due by the second anniversary of the application filing date.

8. Amendments to the patents specification in DRC
Amendments to the specification can only be made within a period of five months after the filing date. Thereafter, amendments must be effected by the filing of an application for a certificate of addition, ie a patent of improvement. It is not possible to amend a granted patent.
It is possible to amend and replace the claims of a patent of importation, where the foreign patent on which the DRC patent is based has been amended to replace the claims. Details of the amendment under cover of a certificate from the foreign patent office must be filed with the IP office.

9. Working
As indicated above, the invention must be industrially exploited in the DRC within a period of five years of the filing date of the application, or within three years of the grant of the patent, whichever period expires first. Failure to exploit the patented invention provides a ground for the granting of a compulsory licence.

In the case of pharmaceutical patents, the industrial exploitation must occur within four years of the date of grant of the patent.

In the case of patents of importation, exploitation must occur within three years of the filing date of the application. If the invention covered by a patent of importation has already been worked abroad, working in the DRC must commence within two years of the date of filing in the DRC.

A one year extension on the abovementioned time periods is obtainable on request, to be filed prior to the expiration of the said periods.