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Democratic Republic of Congo
Industrial Property
Law No. 82001 of January 7, 1982
Table of Contents
Part 1 – Preliminary provisions…………………………..……….. 2
Part 2 – Inventive activities……………………………..………….. 2
Title 1 – Inventions……………………………………….………….. 2
Title 2 – Industrial designs………………………………..………….17
Part 3 – Distinctive signs and names……………………………….20
Title 1 – Marks………………………………………………………..20
Title 2 – Trade and geographical names…………………………..….23
Part 4 –Miscellaneous, transitional and final provisions……..…..25
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Part 1 – Preliminary provisions
Art. 1. This Law shall govern industrial
property as an intellectual right while,
however, excluding literary and artistic
property, for which there is special
legislation.
Industrial property right is defined as the
body of provisions regulating the
conditions and arrangements:
• for the grant and registration of the
works covered in Article 2, paragraph 2;
• for the exercise of the right and
obligations relating to the use of these
works; and
• for the repression of unfair competition.
Art. 2. Industrial property shall be
protected by the conditions and
arrangements provided for in this Law.
Inventions, industrial designs, distinctive
signs, trade and geographical names as
well as signs may be the subject of an
industrial property title called, depending
on the case, a patent or a registration
certificate.
The discoveries referred to in Article 13
may be the subject of a title called an
incentive certificate.
Art.3. Nationals of nonmember countries
of the International Union for the
Protection of Industrial Property whose
domicile or establishment is located
outside the Democratic Republic of Congo
may only benefit from this Law if
Congolese nationals benefit from
reciprocity of protection in the application
of the provisions of the Paris Convention
for the Protection of Industrial Property.
Part 2 – Inventive activities
Title 1 – Inventions
Chapter 1 – General provisions
Art.4. Under the conditions and within
the limits set by this Law, an invention
may be the subject of an industrial property
title called a “patent”.
This instrument shall confer on its holder
an exclusive right of temporary
exploitation.
Art.5. There shall be three types of
patents: invention patents, import patents,
and improvement patents.
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Invention patents shall primarily cover
inventions which, on the date of filing or of
priority of the related application, have not
yet been patented.
Import patents shall cover inventions for
which, on the date of filing or of priority of
the related application, the holder had
already obtained an invention patent in a
foreign country.
Improvement patents shall be those which
concern any improvement of an already
patented invention.
Chapter 2 – Patentable inventions
Art.6. Any new invention which, arising
from an inventive activity, is capable of
being exploited as the subject matter of
industry or trade, shall be patentable.
Art.7. Under this Law, an invention shall
be considered new if it is not included in
the prior art.
Prior art shall comprise, subject to what is
stipulated in paragraph 3 of this Article,
everything that was accessible to the public
prior to the date of filing or the date of
priority of the patent application, through a
written or oral description, use or any other
means.
Novelty shall apply to a patent if such
disclosure arises directly or by priority of
the primary patent.
Nevertheless, the disclosure of this
invention, in the six months prior to the
filing of the patent application, shall not
defeat the novel character of an invention,
if such disclosure arises directly or
indirectly, in addition to what is covered in
Article 23:
• from a characteristic abuse toward the
applicant or his predecessor in title;
• from the fact that the applicant or his
predecessor in title displayed the
invention in one or more official
exhibitions or exhibitions recognized
officially by the Democratic Republic
of Congo.
Applicants as defined by Chapter 5 of this
Title may, within a period of six months
starting from the date of closure of the
event, apply for protection and claim the
right of priority from the day on which the
patented object was displayed.
The novelty of an invention must further
have as its subject a new means, a new
application of a known means, a new
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combination of known means, or a new
product.
Art.8. A means shall be considered new if
it refers in particular to a new
manufacturing process.
The patent shall in this case be limited to
the use of this process and may not
therefore prevent the same product being
obtained by another means.
An application or a combination of known
means shall be considered new if the
means used produce a result different from
the one they made it possible to obtain
before.
The new combination may entail a joint
functioning of assembled bodies which
must cooperate to obtain a joint outcome.
However, the mere juxtaposition of said
bodies shall not be considered a new
combination.
A product shall be considered new if it
relates to an object featuring characteristics
and advantages not found in previous
similar products.
Art.9. An invention shall be deemed to
stem from an inventive activity if, in the
view of an expert, it is not obvious from
the prior art, either in the means,
application, combination of means or
product that is the subject thereof, or in the
result which it provides.
Art.10. An invention shall be capable of
being exploited as the subject matter of
industry or trade if its subject matter may
be produced or used in any kind of
industry.
The term “industry” must be understood in
the broadest sense of the term. It shall
cover, in particular, crafts, agriculture,
fisheries and services.
Art.11. An invention concerning a drug
may only be patented if its subject matter
is a product, substance or composition that
has been presented for the first time as
constituting a drug.
Formatted: French (France) Chapter 3 – Nonpatentable inventions
Art.12. Subject to the provisions relating
to Chapter 6 of this Title, and without
prejudice to the express legal or regulatory
provisions, the following shall not be
considered patentable:
1. theoretical or purely scientific principles
and conceptions;
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2. creations of a purely ornamental nature:
3. financial or accounting methods, game
rules and all other systems of an
abstract nature, in particular programs
or series of instructions for the sequence
of operations of a calculating machine;
4. inventions whose publication or
exploitation would be contrary to public
order, State security or morality.
Chapter 4 – Special provisions for
discoveries
Art.13. According to this Law, discovery
shall occur when, for a noninventive
activity, the conclusion is to observe the
existence of an object which already exists
but whose exploitation has never been
made public.
This Article shall not cover scientific
discoveries according to the Geneva Treaty
on the International Registration of
Scientific Discoveries.
Noninventive activity shall be defined as
activities other than those referred to in
Article 9.
Art.14. Discoveries may be the subject of
a title called an “incentive certificate”.
Incentive certificates shall be issued to the
author or holder of the discovery and shall
give him the right to a reward, in
accordance with the conditions and
arrangements to be determined by enabling
measures.
Nevertheless, incentive certificates shall
only be granted for useful discoveries.
Chapter 5 – Filing and grant of patents
and incentive certificates
Art.15. Applications for patents or
incentive certificates shall be filed subject
to the forms and conditions set in this Law
and in its enabling measures.
Art.16. The filing of applications must
include, in particular:
1. the name or trade name and address of
the holder, the author and, as the case
may be, the agent;
2. a clear and complete description of the
invention or the discovery. With regard
to the invention, the description must be
illustrated, where appropriate, by
drawings which are necessary for
persons skilled in the art to understand
and make said invention;
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3. the subject matter of the invention or
discovery;
4. in the case of an invention, the claim(s)
defining the scope of the requested
protection. Such claims may not go
beyond the content of the description;
5. information relating to titles granted
abroad, as the case may be;
6. the International Patent Classification;
7. proof of payment of the fees due at the
time of filing the application or
claiming priority.
Art.17. Applications for a patent or an
incentive certificate shall be filed by the
author or holder himself or by his agent, by
his own hand or by mail.
If filing is performed by an agent, it shall
be accompanied by a duly established
power of attorney, called a “special power
of attorney”. In this case, this power of
attorney must mention the elements which
make up the file.
Art.18. NonCongolese applicants who
are domiciled abroad shall be obliged to
indicate an address for service with a
Congolese agent and to work through him.
Art.19. Industrial property agents must
have received prior authorization, on the
basis of their good repute, ethics and skill
in the field, from the competent authority
or its delegate.
Such authorization may be withdrawn at
any time, for serious misconduct.
The Ministry responsible for industrial
property shall keep and publish regularly
the list of authorized or delisted agents.
This list shall give the names and addresses
of said agents.
Art.20. According to this Law, industrial
property advisors and any other person
displaying indepth knowledge in the field
of industrial property may be recognized as
agents.
Art.21. In addition to representation,
industrial property advisors shall have the
role of advising or assisting any person
interested in the field of industrial
property.
Art.22. If two or more applications have
been filed on the same day for the same
subject matter, seniority shall be conferred
on the filing which benefited from a
temporary advance.
Art.23. If an author or holder undertakes
to exploit his invention without proceeding
to file, said author or holder shall have six
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months maximum, starting from the
beginning of the exploitation, to rectify the
situation. Once this deadline has expired,
the filing shall be deemed inadmissible.
Art.24. Applications for patents or
incentive certificates shall be filed with the
Ministry responsible for industrial
property.
The ad hoc services of the regional
administration may, as far as they are
concerned, register applications relating to
filings then transmit them to the Ministry
responsible for industrial property,
according to the conditions and
arrangements to be determined by the
enabling measures of this Law.
Art.25. The Ministry responsible for
industrial property shall keep a record
mentioning, in addition to proof of
payment of the filing fee and of the first
annuity, the day, month, year, time and
minute at which the application and the
accompanying documents were received. If
filing is made in person, the record shall be
countersigned by the applicant, who shall
receive a copy thereof.
Art.26. The Minister responsible for
national defense and security or his
delegate may, on a confidential basis,
acquaint themselves on site with
applications for patents or incentive
certificates at the Ministry responsible for
industrial property.
Any applicant may, within the time limit
provided for by Article 28, withdraw his
application or request the postponement of
the grant of the patent or incentive
certificate. In any event, this may not
exceed a term of six months starting from
the filing.
Art.27. Any applicant may, within the
deadline provided for by Article 28,
withdraw his application or request the
postponement of the grant of the patent or
incentive certificate.
In any event, postponement may not
exceed a period of six months starting from
the filing.
Art.28. The Ministry responsible for
industrial property shall have the following
time limits for admissibility to rule on
applications received:
1. three months for applications made
from the national territory;
2. five months for applications from
abroad.
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These time limits shall start from the
receipt, by the competent Ministry, of the
filing of the application.
Art.29. During the period of
admissibility, any applicant may modify
his application and submit new wording
for his claims. Unless the applicant decides
otherwise, the file concerning the
application for a patent or an incentive
certificate shall not be made public prior to
the expiration of the abovementioned time
limit.
Art.30. After an administrative
examination of the file, the Minister
responsible for industrial property shall
rule on the admissibility of the application
or reject the application.
In case of rejection, notification shall be
given to the applicant.
Notwithstanding, subject to what is
stipulated in paragraph 4 of this Article, if
an application does not comply with the
conditions and arrangements of form, as
defined by this Law and its enabling
measures, the Minister responsible for
industrial property may invite the applicant
to regularize said application within six
months, starting from the modification of
this invitation.
In any event, once it has been established
that a patent application has already been
the subject of a filing in a foreign country
on which a decision has not yet been taken,
the competent Ministry shall postpone the
grant of title.
Art.31. Patents and incentive certificates
shall be granted without prior examination
of the merits, at the risk of the applicant
and with no guarantee as to the reality,
novelty or merits, depending on the case,
and as to the accuracy of the description,
without prejudice to the rights of third
parties.
Without prejudice to the provisions of the
previous paragraph, the grant of patents or
incentive certificates concerning the food
or pharmaceutical sectors shall be subject
to a prior examination on the merits.
In any event, at the express request of the
applicant, the Ministry responsible for
industrial property may have any
competent body examine said filing, at the
applicant’s expense.
Art.32. Only a single patent or incentive
certificate may be granted for the same
invention or discovery.
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Applications for patents or incentive
certificates must concern a single invention
or discovery or a group of inventions or
discoveries, provided that these inventions
or discoveries are related to each other in
such a way as to form a unit.
Claims relating to an invention or group of
inventions may concern, simultaneously or
not, one or more means, one or more
applications of means, or one or more
products.
If an application concerns several
inventions, it must be divided within the
same time limit as that provided for the
period of admissibility, if the competent
Ministry or the applicant so requests.
Divisional applications shall benefit from
the date of filing and, as the case may be,
the date of priority of the initial
application.
Art.33. Once the prescribed formalities
have been performed, the holder, his agent
or his successor in title shall be issued with
the original of the patent or incentive
certificate, to which shall be attached a
copy of the descriptive summary of the
invention or discovery and, as the case
may be, the duly numbered drawings
concerning this description.
Art.34. Decisions to grant a patent or
incentive certificate shall be taken by the
competent authority or his delegate.
Art.35. Subject to the provisions of
Articles 28 and 30, patents and incentive
certificate shall be granted in the order in
which the corresponding applications were
filed.
Art.36. Subject to what is stipulated in the
Chapter relating to secret inventions and
discoveries, patents shall be granted
respectively for the following periods,
starting from the filing of the application:
1. 20 years for invention patents;
2. 15 years for invention patents
concerning drugs.
Art.37. Import patents and improvement
patents shall come to an end at the same
time as the primary patent to which they
are attached.
Art.38. Patents may also end by express
written and authenticated waiver,
addressed to the Ministry responsible for
industrial property.
Waivers may be total or partial.
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The author of the waiver shall be notified
by the Ministry responsible for industrial
property.
The waiver may not infringe the rights
acquired by third parties in the patents
without their consent.
Chapter 6 – Secret inventions and
discoveries
Art.39. Inventions and discoveries by
Congolese nationals as well as those by
foreigners residing in the Democratic
Republic of Congo of particular
significance for the national interest may
be declared secret. They may concern any
field, especially that of national defense
and security.
Art.40. If an invention or discovery is
declared secret, the applicant shall be
informed accordingly, without delay, by
registered letter. From this moment on, the
grant of the corresponding patent or
incentive certificate shall be suspended, in
addition to its being prohibited, unless
there is an express authorization:
1. to make public the invention or
discovery which is the subject of the
application for a patent or incentive
certificate;
2. to disclose the industrial secret;
3. to file a corresponding patent
application abroad. If, at the time of
notification, the same invention has
already been the subject of one or more
patent applications abroad, the
Congolese State shall solicit, under
Articles 45 and 46, the postponement of
the grant of the foreign patent;
4. to issue a copy of secret filings;
5. to exploit freely the secret invention or
discovery.
Art.41. The authorization referred to in
Article 40 shall be granted by means of a
decree issued by the Minister responsible
for industrial property or his delegate, on
the advice of the Minister of the Ministry
concerned.
Art.42. If they deem it necessary for the
national interest, the Ministers of the
Ministries concerned may temporarily
organize the conditions for exploitation of
the secret inventions or discoveries and
those for implementation of the industrial
secrets.
If it has been established that these
measures are insufficient, they may
temporarily ban the exploitation of the
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secret inventions or discoveries or the
implementation of the industrial secrets;
reserve temporarily and exclusively or not
for the State the right to exploit an
invention patent or an incentive certificate;
or oblige the party concerned to assign to
the State full knowledge of a nonpatented
invention or industrial secret.
The provisions of Article 57 shall not
apply to secret inventions and discoveries.
Art.43. Within a period of six months,
starting from the date of filing of the
application for a patent or an incentive
certificate, the Minister(s) referred to in
Article 41 shall decide on the secret filing
and shall notify his/their decision to the
applicant without delay.
This period may not be extended more than
twice.
In the event of extension, the applicant
shall be notified accordingly. If no decision
has been taken by the expiration of the
deadlines provided for in paragraphs 1 and
2 of this Article, the applicant shall be
entitled to compensatory payment
proportionate to the damage suffered.
Failing amicable agreement, such
compensation, regardless of the amount,
shall be set by the competent court, in
accordance with this Law and its enabling
measures.
Art.44. The author or holder of a secret
invention or discovery shall receive fair
compensation, with the amount and
payment modalities to be determined by
the enabling measures.
Art.45. Without prejudice to the
provisions of Article 3 of this Law,
reciprocity agreements may be concluded
between the Democratic Republic of
Congo and other States for the mutual
safeguarding of the secrecy of inventions
which are the subject of patent applications
of interest for national defense or the
security of their respective territories.
Art.46. In the event that, in accordance
with Article 45, a reciprocity agreement
has been signed with the Congolese State
covering the disclosure of an invention
which is the subject of a patent application,
the Minister responsible for industrial
property or his Delegate shall refrain, at
the request of this State or that of the
applicant – which shall establish proof of
the intervention – from communicating this
invention to the public and from issuing
copies, as long as this prohibition is in
force.
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Chapter 7 – Rights and obligations
attached to patents and incentive
certificates
Section 1 – Rights
Art.47. Subject to Article 51, the right to
the patent or incentive certificate shall
belong to the holder of the invention or
discovery or his successor in title.
If an invention or a discovery has been
made by several persons independently of
each other, the right to the patent or
incentive certificate shall belong to the
person who first filed an application for a
patent or incentive certificate for this
invention or discovery or who validly
claimed priority for his patent application.
If an invention or a discovery is made in
common by several persons, the right to
the patent or incentive certificate shall
belong to them jointly.
Art.48. Subject to the provisions relating
to secret inventions and discoveries, the
patent holder shall be entitled to:
1. prohibit third parties from engaging in
the activities covered by the patent
consisting notably in:
manufacturing the product which is
the subject of the patent concerned;
using, introducing into the national
territory, selling, offering for sale or
putting on the market in another
form the protected product as well
as holding said product with a view
to using it or putting it on the
market;
using or implementing, selling or
offering for sale, the patented
process;
delivering or offering to deliver to a
non licenseholder means with a
view to the implementation of a
patented invention;
2. institute proceedings in the courts
against anyone who infringes his rights,
by manufacturing products, by
employing means covered by the patent,
or by displaying for sale or prohibiting
on Congolese territory one or more
counterfeit goods.
In any event, the author of an invention or
a discovery shall be entitled to be
mentioned as such in the patent or
incentive certificate. The same shall apply
to each of the coauthors.
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Art.49. The rights attached to patents
shall only cover acts performed for
industrial and commercial purposes and
shall not cover acts performed in particular
for the sole purpose of scientific research
or certain preparations for laboratory
lectures, made in an impromptu manner.
Art.50. The rights of the holder of a
patent or incentive certificate shall be
assignable, grantable and transferable inter
vivos or upon death, in whole or in part.
Acts involving assignment, granting or
transmission of the rights inherent in
patents or certificates must, on pain of
invalidation, be recorded in writing and be
entered in the register of patents or
incentive certificates.
Art.51. Unless specifically stipulated
otherwise in the contract, the right in a
patent for an invention made under a
service contract shall belong to the
employer.
In the event that an employee, through his
employment contract, has not been tasked
with an inventive activity, and that, by
chance, he makes an invention by using the
means made available by the employer, the
invention shall belong jointly to the party
concerned and to his employer.
In the former instance, the author of the
invention shall be entitled to a bonus
whose amount, nature and value in use
shall be determined by the enabling
measures.
Art.52. In the case of an invention made
jointly, and subject to what is stipulated in
Article 51, each joint owner may exploit
the invention in the proportion of his rights
and take legal proceedings for his benefit
in respect of infringements.
Art.53. If a patent or an incentive
certificate has been applied for, either for
an invention or a discovery that has been
taken from the holder or his successors in
title, or in violation of a legal or treaty
obligation, the injured party may claim the
paternity of the application or the
ownership of the title granted.
In the event that it succeeds, the action in
respect of a claim shall effect the
subrogation in favor of its author.
Should this be the case, the court shall
order:
• either that the applicant transfer his
rights and obligations to the successor
in title within a set deadline, in which
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case the transfer shall only have effect
for the future;
• or that the successor in title be
subrogated in all of the patented and
certified rights and obligations of the
applicant; should this be the case, the
subrogation shall have retroactive
effect.
Section 2 – Obligations
Art.54. The holder of a patent shall be
obliged, on pain of disqualification, to
exploit or have exploited industrially in the
Democratic Republic of Congo the
invention which is the subject of the
patent, in an effective, serious and
continuous manner.
The application measures shall clarify the
notion of effective, serious and continuous
industrial exploitation.
Such exploitation must take place within a
period of:
1. five years starting from the filing of the
application or three years starting from
the grant of the patent, with the period
which expires last to be applied, in the
case of a primary patent or an
improvement patent;
2. four years starting from the grant of the
patent for patents concerning drugs, in
the interests of public health;
3. three years starting from the filing of
the application, in the case of an import
patent. If the invention covered by the
import patent is already exploited
abroad, exploitation in the Democratic
Republic of Congo shall occur in the
two years starting from the filing of the
application.
In any event, an extension of one year,
renewable once, may be granted, at the
request of the interested party, by decision
of the competent authority or its delegate.
Such a request must be made and reach the
competent Ministry before the expiration
of the time limits set out in paragraphs 3,
10 and 30 of this Article.
Art.55. In accordance with this Law, the
exploitation of a patented invention shall
consist in giving specific form to such
invention, by means of effective technical
exploitation according to the procedures to
be determined by the enabling measures.
Notwithstanding, importing or packaging
objects patented and manufactured abroad
shall not constitute exploitation of an
invention.
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Art.56. The holder of an improvement
patent may not exploit his invention or
have it exploited without the authorization
of the holder of the primary patent.
Likewise, the holder of the primary patent
may not exploit the improvement patent or
have it exploited without the authorization
of its holder.
Art.57. The exploitation of a patent by
third parties, whether natural persons or
legal entities, shall take place in the
conditions and according to the procedures
provided for in Articles 64 to 87.
Art.58. The seizure of a patent or an
incentive certificate which has been the
subject of a pledge shall be effected,
mutatis mutandis, in accordance with
Article 92.
The seizure shall render unenforceable for
the attaching creditor any subsequent
modification of the rights attached to the
patent or incentive certificate.
Art.59. Patents, certificates and licenses
to work shall be registered, respectively, in
the order in which they are granted, in
registers of patents, certificates or licenses
to work.
The Ministry responsible for industrial
property shall also register changes in the
names and addresses of holders as well as
those of agents.
In any event, to be binding on third parties,
all acts modifying the rights and
obligations attached to an application for a
patent or certificate, to a patent or
certificate, must be entered in the ad hoc
registers.
Art.60. Patents, certificates and licenses
to work shall only be binding on third
parties once they have been published in
the Official Gazette.
Such publication shall follow the order of
their registration.
The Ministry responsible for industrial
property may, for information purposes,
keep a review specialized in the
publication of patents, certificates and
licenses to work.
Art.61. The costs relating to the
registration and publication referred to in
Articles 59 and 60 may be set by enabling
measures.
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Art.62. Without prejudice to what is
stipulated in Article 54, the maintenance in
force of the patent shall be subject to
payment of the annual fees.
These fees shall be set during the periods
provided for in Article 54, and shall be
progressive above and beyond these
periods.
Holders of an improvement patent shall be
subject to the system of fixed fees, if they
work their inventions themselves.
The setting of the amount of each of these
fees as well as that of the various expenses
shall lie within the regulatory domain.
Art.63. In case of delay in the payments
referred to in Article 62, a sixmonth grace
period shall be granted to holders, subject
to the payment of a surcharge on the fee
due.
Nevertheless, the holder of a patent
disqualified in these conditions may secure
its restoration if he provides legitimate
excuses and if he so petitions the
competent Ministry, in the two months
starting from the expiration of the grace
period provided for in paragraph 1 of this
Article.
Restoration shall only take effect if the
patent holder has paid, within a period of
two months starting from the act granting
such restoration, an additional fee equal to
double the amount of the fees to be paid.
The restoration of a patent may not
infringe the rights of third parties.
Section 3 – Specific provisions for
licenses to work
Art.64. In accordance with this Law, there
shall be three kinds of licenses to work:
voluntary licenses; nonvoluntary licenses;
and ex officio licenses.
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(1) Voluntary licenses
Art.65. “Voluntary license” shall be
defined as one or more licenses to work
which a patent holder may grant by
contract to a third party.
Contracts for this kind of license must be
drawn up in writing and shall require the
signature of the contracting parties.
Each voluntary licensing contract must be
deposited as an original and registered with
the Ministry responsible for industrial
property, subject to the payment of the
registration fee.
Unless stipulated otherwise in the contract,
said payment shall be at the holder’s cost.
Art.66. Clauses contained in the licensing
contracts relating to these contracts shall
be null and void if they impose limitations
on the licensee which do not arise from the
rights conferred by the patent.
Nevertheless, the following shall not be
considered limitations within the meaning
of paragraph 1 above:
1. limitations concerning the
measurement, scope, quantity, territory
or term of the exploitation of the subject
of the patent;
2. limitations imposed by the licensor to
ensure the best possible technical
working of the invention;
3. the obligation imposed upon the
licensee to refrain from any act likely to
infringe the rights of the patentee.
Art.67. Unless stipulated otherwise in the
contract, voluntary licenses shall only be
assignable and grantable with the
patentee’s consent.
In the case of sublicenses, the beneficiary
shall be bound to refrain from performing
any act likely to infringe the rights of the
patentee or the licensee.
Art.68. To grant a contractual license to a
third party, a joint owner must have the
agreement of all of the other joint owners
or the authorization of the courts.
Each joint owner may transfer his share at
any time.
Joint owners shall have a right of
preemption for a period of three months,
starting from notification of intent to
transfer. Failing agreement on the price, it
shall be set by the court, unless the seller
withdraws his offer.
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The provisions of this Article shall apply in
the absence of stipulations to the contrary.
Joint owners may derogate therefrom, at
any time, by means of coownership
regulations.
Art.69. The enabling measures may
provide that the signature of certain
categories of licensing contracts with
foreigners, whether natural persons or legal
entities, as well as their renewal or
modification, shall require the express
approval of the Minister(s) concerned,
including the Central Bank of Congo, as
the case may be.
(2) Nonvoluntary licenses
Art.70. Within the meaning of this
Article, a nonvoluntary license may not be
requested for failure to work industrially or
insufficient working before five years,
have elapsed, starting from the filing of the
application for the patent or three years
starting from the grant of the patent, with
the period which expires last to be applied.
Art.71. Any person may, upon the
expiration of the periods and in the
conditions provided for in Article 54,
request the benefit of a nonvoluntary
license.
Art.72. Nonvoluntary licenses shall in
general be nonexclusive.
They may, however, be exclusive in the
conditions and according to the procedures
provided for in Article 79.
In the case covered in paragraph 1 of this
Article, the patentee may not grant licenses
or sublicenses, as the case may be, on
more advantageous terms than those
stipulated in the nonvoluntary license.
Any advantage granted in violation of the
stipulations of the previous paragraph shall
be revoked ex officio.
Art.73. Applications for nonvoluntary
licenses shall be filed with the competent
court. They must be accompanied by
written justification providing that the
applicant was not able to obtain a contract
license from the patent holder.
Applicants must further prove that they are
capable of working the invention so as to
meet the needs of the market.
Art.74. Before deciding on an application
for a nonvoluntary license, the court shall
19
summon and hear both parties. It may, as
the case may be, request an opinion from
the competent Ministry.
If the court grants the nonvoluntary
license, it must fix the conditions by
stipulating in particular the field of
application, term, scope of the rights and
obligations and, barring an agreement
between the parties, the amount of the fees
to which it shall be subject.
The court’s decision to grant a non
voluntary license shall be notified, by the
clerk, to each of the parties and to the
Ministry responsible for industrial property
within 30 days of the judgment being
handed down.
Art.75. The conditions provided for in
Article 74 may be revised, either at the
request of two parties, or at the request of
one of them, by the competent court.
Art.76. The holder of a nonvoluntary
license shall not have any rights in the
improvement patents attached to the
original patent which is the subject of the
nonvoluntary license.
Nevertheless, he may, by following the
procedure provided for the granting of
voluntary or nonvoluntary licenses, work
said patents.
Art.77. Nonvoluntary licenses may only
be transmitted, even in the form of the
grant of a sublicense, with the part of the
firm or goodwill which exploits this
license.
Any transmission of a nonvoluntary
license shall, on pain of invalidation, be
authorized by the court which granted the
license.
Art.78. In the event that the holder of a
nonvoluntary license fails to meet the
conditions on which this license was
granted, the patent holder or any interested
licensee may refer to the competent court a
request for withdrawal of the license.
(3) Ex officio licenses
Art.79. Ex officio licenses shall be non
voluntary licenses.
They shall be applied in any case where
the working, be it absent or insufficient, in
quality or quantity, could be detrimental to
the country’s economic development in
particular and to the public interest in
general.
20
Ex officio licenses may be worked by the
State itself or by third parties acting on its
behalf.
Ex officio licenses may be exclusive or
nonexclusive.
Exclusive ex officio licenses may be
granted for a maximum period of five
years, provided that the patent concerned
does not lapse or is not revoked for
insufficient industrial working for an
additional period of two years, starting
from the expiration of the exclusive
license.
Art.80. Subject to what is stipulated in
Article 82, the State may, at any time,
starting from the grant of the patent, ask
the Ministry responsible for industrial
property to benefit from the regime of ex
officio licenses.
Art.81. The decision granting the ex
officio license shall determine the
conditions for the working of the license,
in particular its exclusive or nonexclusive
nature, its field of application, duration, the
scope of the rights and obligations of the
patentee and the licensee, and the amount
of the fee to which it shall be subject.
In the event of disagreement between the
parties, the amount of said fee shall be set
by the competent court.
Ex officio licenses shall take effect starting
from their notification.
Art.82. The competent authority or its
delegate may give those patent holders
whose industrial working proves to be
insufficient formal notice that they must
undertake working in such a way as to
meet the needs of the national economy.
In the event that this formal notice is not
acted upon within a period whose duration
is to be determined by the enabling
measures in each case and, if the
insufficient working undertaken is
detrimental, in quality or quantity, to
economic development or the public
interest, the patent which is the subject of
the formal notice may be subject to the
regime of ex officio licensing.
The competent authority or its delegate
may extend the period referred to in the
previous paragraph if the person given
formal notice proves that the circumstances
which could justify the failure to work
industrially or insufficient working are not
attributable to him.
21
(4) Provisions common to licenses to work
Art.83. Without prejudice to the
provisions of Article 60, paragraph 1, all
licenses granted must be registered with
the Ministry responsible for industrial
property within three months starting from
the grant of the license.
Art.84. The duration of a license to work
may not in any case exceed that of the
patent to which it relates.
Art.85. A license to work may end by
means of an express, written and
authenticated waiver.
Waivers may not infringe the rights of the
patent holder or those of third parties
without their consent.
The provisions of Article 38, paragraphs 2
to 4, shall apply, mutatis mutandis, to
licenses to work.
Art.86. Unless expressly stipulated
otherwise, the grant of an exclusive license
shall prevent the owner of the patent from
working the invention himself.
Art.87. The assignment or grant of a
license or sublicense to work patents must
include the relevant knowhow.
The provisions of this Article shall apply to
any kind of assignment or grant, whether
voluntary or forced, free of charge or on a
paying basis.
Section 4 – Counterfeiting
Art.88. Any deliberate infringement of
the patentee’s rights, as defined in Articles
4, 48, 56 and 67 of this Law, shall
constitute the offense of counterfeiting
which shall incur the civil and criminal
liability of the author.
Art.89. As a derogation to the provisions
of Article 4 and in accordance with Article
49, acts prior to the publication of the
patent shall not constitute counterfeiting
and shall not warrant conviction, even in
civil proceedings, with the exception,
however, of acts subsequent to notification
made to the presumed counterfeiter of an
official copy of the invention description
attached to the patent application.
Art.90. Proceedings for counterfeiting
shall be instituted by the patentee.
Nevertheless, the holder of an exclusive
license shall also be entitled to institute
22
proceedings for counterfeiting within the
limits of the damage he has suffered,
unless the patentee has reserved the
prerogative of instituting such proceedings.
In any event, the holder of an exclusive
license shall only be entitled to institute
proceedings for counterfeiting if, after
being given formal notice, the patentee
fails to take such action.
Art.91. The patentee shall be entitled to
participate in proceedings for
counterfeiting brought by the patentee with
a view to obtaining compensation for any
damage he may have suffered.
Similarly, any exclusive licensee shall be
entitled to participate in the proceedings
for counterfeiting brought by the patentee
with a view to obtaining compensation for
any damages he may have suffered.
Art.92. The beneficiaries of proceedings
for counterfeiting in accordance with
Article 90 may have the President of the
competent court order precautionary
measures, in particular, to have bailiffs,
assisted or not by experts of their choice,
make a detailed description, with or
without seizure, of the allegedly
counterfeit goods.
The order of the President of the competent
court shall be handed down upon simple
request, in the light of the documentary
evidence.
Actual seizure shall give rise to the prior
payment of a security whose amount shall
be set via enabling measures.
If the claimant fails to bring an action
before the competent court within a
maximum period of three months, starting
from the date of notification of the
foregoing order, the description or seizure
shall automatically be null and void,
without prejudice to any damages which
may be claimed.
Art.93. The offense of counterfeiting shall
be punishable by one to six months’
imprisonment and a fine, the amount of
which shall be fixed by enabling measures,
or by only one of these penalties.
Second offenders shall be punishable by
twice the maximum penalties provided for
in the previous Article.
Within the meaning of this Article, a
second offense shall be deemed to have
occurred if the accused has already been
convicted of counterfeiting in the last six
years.
23
Art.94. The public right of action for the
imposition of penalties, provided for in
Article 93, may only be initiated by the
Public Prosecutor’s Office, at the injured
party’s request.
Civil action based on counterfeiting shall
only be admissible if the offense has been
criminally established.
Art.95. In case of a successful action for
counterfeiting, the competent court shall
order the cessation, by the counterfeiter, of
any activity infringing the rights of the
injured party.
At the request of the injured party and
subject to the provisions of Article 114 of
OrdinanceLaw No. 68/248 of July 10,
1968 pertaining to Judicial Structure and
Jurisdiction, as amended to date, the same
court may award him damages for the
harm suffered and/or order, for his benefit,
the confiscation of the goods recognized as
counterfeits and, as the case may be, the
confiscation of the instruments or utensils
intended specifically for their manufacture.
Chapter 8 – Invalidity and lapse of
patents and certificates
Section 1 – Invalidity
Art.96. Patents and incentive certificates
may be the subject of invalidity
proceedings.
Invalidity shall be pronounced by the
competent court at the request of any
interested party. However, the Public
Prosecutor’s Office may, as the main party
or a participant, act ex officio in the case of
invalidity of a patent or incentive
certificate.
Art.97. Invalidity shall be pronounced by
the courts in all instances where:
1. in the case of a patent, it fails to meet
the conditions defined by this Law, in
particular Articles 6 to 12;
2. in the case of an incentive certificate, it
fails to meet the conditions defined by
this Law, in particular Article 14 and/or
if its subject matter is unlawful,
contrary to public order or morality;
Art.98. Invalidity may be total or partial.
By pronouncing the invalidity, the court
shall simultaneously pronounce the
resulting secondary invalidities.
24
Art.99. In the event that invalidity occurs,
it shall be retroactive, starting from the
grant of the patent or certificate.
In any event and unless specifically
stipulated otherwise, the injured parties
may institute proceedings for the recovery
of the price or fees paid to the patentee, if
they prove that, due to him, they did not
obtain the expected benefits from the use
of the patent.
Art.100. Any act pronouncing the final
invalidity of a patent or certificate shall be
notified, without delay, to the Ministry
responsible for industrial property, which
shall enter it in the ad hoc register and have
it published in the Official Gazette.
Section 2 – Lapse
Art.101. Without prejudice to the
provisions of Article 62, paragraph 1, the
Ministry responsible for industrial property
shall prescribe patent lapse proceedings for
failure to work industrially or insufficient
working in the event that the patent holder
fails to prove that the circumstances which
could justify the failure to work or
insufficient working are not attributable to
him. Nevertheless, such proceedings may
not be instituted before the expiration of a
period of two years starting from the grant
of the first nonvoluntary license.
In any event, failure to communicate the
knowhow referred to in Article 87 shall
result ex officio in lapse.
Art.102. Lapse for nonpayment of
annuities shall lie within the remit of the
Ministry responsible for industrial
property, which shall notify the patentee.
Art.103. Once lapse has become final, it
shall only apply for the future.
It shall be published in the Official Gazette
by the competent Ministry.
Notwithstanding, lapse due to failure to
pay the annuities shall only be published
once the grace period for restoration
provided for in Article 63 has expired or
the petition has been rejected.
Section 3 – Penalties
Art.104. Unjustly claiming an application
for a patent, or incentive certificate or
unjustly claiming to be the holder of a
patent, or an incentive certificate or a
25
license to work, shall constitute an offense
punishable by three months to one year’s
imprisonment and a fine, the amount of
which shall be fixed by enabling measures,
or only one of these penalties.
In the event of a second offense, the
maximum penalties provided for by this
Article shall be doubled.
Art.105. Knowingly violating one of the
prohibitions set out in Articles 40 and 42
shall also constitute an offense.
Such an offense shall be punishable,
without prejudice to the more severe
penalties provided for breaches of State
security, by a fine, the amount of which
shall be set by enabling measures. If the
violation is prejudicial to national defense
or State security, a sentence of one to three
years’ imprisonment may in addition be
handed down.
Title 2 –Industrial designs
Chapter 1 – General provisions
Art.106. This title shall only concern
industrial designs which are original and
which are new and industrially or
commercially applicable within the
meaning, mutatis mutandis, of Articles 7
and 10 above.
Art.107. For the purposes of this Law, an
industrial design shall be defined as any
combination of lines and/or colors
designed to give any industrial or crafts
object a special appearance.
An industrial design shall be defined as
any threedimensional form, whether or
not associated with colors, as well as any
industrial or crafts object which can be
used as models for the manufacture of
other units and which differ from similar
objects or forms either by a separate and
recognizable configuration giving it a
character of novelty, or by one or more
external effects giving it a specific and new
appearance.
Art.108. In case of conflict, the originality
of an industrial design shall be determined
by the competent courts.
The publicity given to an industrial design,
prior to its filing, by its being put up for
sale, shall not defeat the novelty of said
design.
26
The enabling measures may prescribe
provisions appropriate for certain
industries with a view to allowing
industrialists to establish their priorities, in
particular by keeping private registers
subject to administrative stamps.
Art.109. The same creation may not at the
same time be considered an invention and
an industrial design.
Nevertheless, if the same creation is
considered at the same time an industrial
design and a patentable invention and the
constituent elements of the novelty of the
design are inseparable from those of the
invention, only the provisions relating to
inventions shall apply to this creation.
Art.110. In any event, only industrial
designs which have been duly filed shall
enjoy the benefit of this Law.
Art.111. The following shall not benefit
from the protection referred to in Article
110:
1. any industrial design that is contrary to
public order or morality;
2. any industrial design whose form was
conceived for a technical or industrial
purpose, to such an extent that it is
inseparable from the result sought;
3. any slavish reproduction or imitation of
an industrial design.
Chapter 2 – Filing, registration and
publication of industrial designs
Art.112. The filing of industrial designs
shall be in the form of a written
application, subject to the conditions and
arrangements, mutatis mutandis, of
Articles 16, 18 to 22 and 24 to 26 of this
Law as well as its enabling measures.
Art.113. On pain of invalidity, the filing
shall include in particular:
1. the names or trade names and addresses
of the holder, the author and, as the case
may be, the agent;
2. two identical copies of a specimen or
photographic or graphic representation
of the claimed object, possibly
accompanied by an explanatory caption;
3. proof of payment of the fees due at the
time of filing per object filed and,
possibly, the renewal fee provided for in
Article 122.
Art.114. The same filing can include from
one to 50 industrial designs numbered
from first to last.
27
The industrial designs filed after 50 shall
constitute a new numbering series.
The provisions of Article 31 shall apply,
mutatis mutandis, to industrial designs.
Art.115. Once the filing has been
declared admissible, a certificate of
registration shall be issued to its holder or
his successors in title in accordance with
the procedures provided for in Article 33.
Certificates of registration shall be
equivalent to title for industrial designs.
Art.116. Duly registered industrial
designs shall be published, in accordance
with Article 60.
Nevertheless, it shall be possible for the
applicant, at the time of filing, to request
postponement of registration for a period
of not more than 12 months, starting from
the date of filing or that of claiming of
priority.
Chapter 3 – Rights and obligations
attached to industrial designs
Section 1 – Rights
Art.117. The provisions of Articles 47, 52
and 53 shall apply, mutatis mutandis, to
industrial designs.
Art.118. If an industrial design has been
commissioned, the person who has placed
the order shall be considered, unless
otherwise specified, the holder provided
that the order has been placed with a view
to industrial or commercial use of the
product in which the design is
incorporated.
Without prejudice to what is stipulated at
the end of the first paragraph of this
Article, if the same order has been placed
jointly by two or more persons, they shall
be considered coowners.
Art.119. Any owner of an industrial
design which has been duly filed and
registered or his successor in title shall
enjoy, for a period of five years which can
be renewed once, the exclusive right to
work or have worked, to sell or have sold
28
this design subject to the conditions
provided for by this Law, without
prejudice to the rights of third parties, in
particular the rights provided for in
Articles 50 and 51, and which shall apply
to industrial designs.
This right shall further entitle the right
holder to oppose any manufacturing,
import, sale, placing on sale, rental, offer
to rent, exhibition, delivery, use or
possession for one of these purposes, for
an industrial or commercial aim, of a
product which is identical in appearance to
the industrial design as filed or which
exhibits only secondary differences
therewith.
In any event, the creator of an industrial
design shall be entitled to be mentioned as
such in the certificate of registration.
Art.120. Exclusive rights, as defined in
Article 119, shall be assignable and
transmissible according to the same
conditions and arrangements as those
provided for in Title I relating to
inventions.
Art.121. Holders of industrial designs
shall be entitled, to defend their rights, to
institute proceedings for invalidity, priority
or counterfeiting, as regulated by Title I
above.
Section 2 – Obligations
Art.122.The renewal of the registration of
an industrial design shall be subject to the
payment of a fee larger than the amount of
the filing fee.
Requests for renewal must be made in
writing and reach the Ministry responsible
for industrial property before the expiration
of the fiveyear period provided for in
Article 119.
The renewal fee must be paid subject to the
same conditions as those stipulated in the
previous paragraph.
Nevertheless, this fee may be paid within a
grace period of six months, starting from
the expiration of the foregoing period,
subject to payment of a surcharge.
Art.123. No modifications may be made
to duly filed and registered industrial
designs either during the period of validity
of their registration or at the time of their
renewal.
Section 3 – Extinction of penalties
29
Art.124. An industrial design may be
terminated by means of an express,
written and authenticated waiver. The
provisions of Article 85, paragraphs 2 and
3 shall also apply, mutatis mutandis, to
industrial designs.
Art.125. Knowingly violating one of the
prohibitions provided for in Article 119,
paragraph 2 shall constitute the offense of
counterfeiting.
Art.126. Unjustly claiming an application
for registration of an industrial design or
unjustly claiming to be the holder of an
industrial design shall constitute an offense
punishable by one to six months’
imprisonment and a fine, the amount of
which shall be fixed by enabling measures,
or by only one of these penalties.
In the event of a second offense, the
maximum penalties provided for in
paragraph 1 of this Article shall be
doubled.
Part 3 – Distinctive signs and
names
Title 1 – Marks
Chapter 1 – General provisions
Art.127. This Law shall govern all marks,
known or not known at this date in legal
and regulatory provisions, namely, factory
marks, service marks, and the national
guarantee mark.
Factory marks, trademarks and service
marks may be collective or not, as defined
in Article 140.
Art.128. Within the meaning of this Law,
a mark shall be any distinctive mark which
makes it possible to recognize or identify
various objects or services of any firm.
Such a sign shall be new if it has not yet
been registered as a mark for the same
product or service.
Art.129. The purpose of the national
guarantee mark shall be to certify, on its
own and officially, the quality of
Congolese merchandise.
Special legal or regulatory provisions shall
specify, by category of goods, the
conditions to which the use of said mark
30
shall be subjected, the monitoring of the
goods’ compliance with existing national
standards and the related penalties.
In any event, the placing of certain tradable
goods on the national market shall require
the prior affixing of the national guarantee
mark.
Art.130. The Minister responsible for
industrial property or his delegate shall be
authorized to file free of charge, on behalf
of the State, subject to the conditions
provided for in Articles 128, 131 to 133,
the mark referred to in Article 129.
Art.131. The provisions of Article 110
shall also apply, mutatis mutandis, to
marks.
Art.132. Any material sign which meets
the criteria set out in Article 128, inter alia
a name, denomination, letters, figures or a
combination of figures and letters,
abbreviations, slogans, emblems, borders,
combinations or arrangements of colors,
drawings, reliefs and mottos may be used
as a mark.
A mark must not resemble too closely the
common name of the product, object or
service or its essential qualities, or suggest
qualities which the product does not have.
Art.133. The following may not be
considered marks within the meaning of
Article 128:
1. signs whose use appears to be contrary
to public order or morality as well as the
signs listed below: coats of arms, flags
and other emblems of the State, crosses,
signs and official hallmarks of control
and guarantee as well as any imitation
of heraldic devices;
2. marks which contain indications likely
to mislead the public; those which
consist exclusively of terms indicating
the essential quality of the product or its
composition;
3. the ordinary, common descriptions in
everyday use for the products, objects
or services;
4. certain expressions which, without
commonly and ordinarily describing the
product itself, faithfully mirror the
qualities or purpose; the same shall hold
true, on the one hand, for banal
laudatory expressions such as Extra
Royal and Super; and on the other hand,
for certain traditional emblems and
packaging.
Chapter 2 – Filing, registration and
publication of marks
31
Art.134. Marks shall be filed in writing,
subject to the conditions and procedures,
mutatis mutandis, provided for in Article
112 of this Law and its enabling measures.
Art.135. On pain of invalidity, the filing
of a mark must contain, in addition to
proof of payment of the fees due at the
time of filing:
1. the model of the mark containing a list
of the products, objects or services, to
which the mark applies:
2. the international classification
corresponding to the mark;
3. the negative of the mark.
Art.136. The right of priority attached to a
prior filing made abroad must, on pain of
invalidity, be claimed at the time of filing
of the mark.
In no event may filings or claims of
priority be declared admissible unless they
are accompanied by the proof of payment
provided for in Article 135.
The provisions of Articles 29, 115 and 117
shall also apply, mutatis mutandis, to
marks.
Art.137. Marks shall be registered for a
period of ten years, starting from the date
of filing. However, the national guarantee
mark shall be filed in perpetuity.
The sign constituting the mark and the list
of products or services it covers may not
be modified either during the period of
validity of the registration or at the time of
its renewal.
Registration shall be renewable, upon
request, for new periods of ten years in the
prescribed forms and subject to payment of
the ad hoc fee, the amount of which shall
be set by enabling measures.
Renewal must be applied for during the
last year of the period provided for in
paragraph 1 of this Article.
Chapter 3 – Rights and obligations
attached to marks
Art.138. The rights and obligations of the
holder of a mark shall, by analogy, be the
same as those provided for in Chapter 3 of
Title II relating to industrial designs.
32
In any event, the holder of a mark must use
his mark within a period of three years,
starting from registration.
Art.139. The filing of a mark shall be
compulsory for any economic operator
concerned.
Economic operator shall be defined as any
natural person or legal entity performing in
particular an industrial, commercial,
agricultural or crafts activity.
Chapter 4 – Collective marks
Art.140. Any grouping, body or
community under public or private law,
which has been legally constituted and
enjoys legal status, may, for a purpose of
general, industrial, commercial or
agricultural interest, or to promote the
development of the trade or industry of its
members, acquire collective rights in
accordance with the provisions of this
Chapter.
Art.141. A collective mark shall be any
sign so designated at the time of filing and
used to distinguish one or more common
characteristics of products or services from
different firms which affix said signs as a
mark, under the control of the grouping,
body or community which holds the
collective mark.
Art.142. Without prejudice to the
provisions of Chapters 1 and 2 of this Title,
the exclusive right in a collective mark
shall only be acquired if the filing of the
mark is accompanied by a copy of the
regulations for use and control.
On pain of invalidity, said regulations must
mention the conditions on which depend
the use of the mark, the common
characteristics of the products and services
the mark is intended to guarantee and the
procedures for the control of these
characteristics, combined with appropriate
sanctions and subject to the right of anyone
who can claim a prior right in a non
collective mark.
These same regulations may not contain
provisions contrary to public order or
morality.
Art.143. A collective mark shall be
affixed either directly, by the grouping,
body or community which holds the mark,
by way of control over certain products or
objects, or by its members, under their
supervision and on fixed conditions, to the
products of their manufacture or of their
33
industry, or to the objects in which they
trade.
Art.144. Collective marks shall be
registered in a special section of the
national register of marks, with a mention
of the serial number of the regulations for
use and control.
Art.145. Collective marks may only be
assigned with the firm to which they are
attached.
They may not be the subject of a grant,
pledge or any enforcement measure.
Art.146. Unless they are incompatible,
the rights and obligations of the holders of
the collective marks shall, mutatis
mutandis, be the same as those of the
owners of the noncollective marks.
Art.147. In any event, holders of
collective marks shall be bound to notify
the Ministry responsible for industrial
property of any modification to regulations
for use and control of collective marks.
Such modification may only take effect
after the notification referred to in
paragraph 1 of this Article.
Art.148. The right to bring legal
proceedings to claim the protection of a
collective mark shall be reserved for its
holder.
Nevertheless, the regulations for use and
control may grant persons authorized to
make use of the mark the right either to act
jointly with the holder or to be party to the
proceedings brought by or against him.
The same regulations may also provide
that the holder, acting on his own, may
mention the special interest of users of the
mark and take account, in his request for
compensation, of the specific damage
suffered by one or more of them.
Chapter 5 – Invalidities and procedures
for extinction of marks and penalties
Art.149. Any interested party, including
the Public Prosecutor’s Office, may
institute invalidity proceedings for a mark
that does not appear to comply with the
provisions of Articles 128, 132, 133 and
142 of this Law.
Art.150. The right in a mark shall be
extinguished:
34
1. by a written, express and authenticated
waiver, duly notified to the Ministry
responsible for industrial property;
2. by the expiration of the period of
registration;
3. by lapse for either nonpayment of fees
due or nonuse subject to the conditions
provided for in Article 138.
Nevertheless, subject to what is stipulated
in Article 151, paragraphs 1 and 2, the
holder of a lapsed mark may, in the five
years following the extinction of said
mark, have his rights restored, provided
that the mark in question is still available.
Should this be the case, the holder must
make a new filing subject to the conditions
provided for in Articles 112 to 116. In
addition, he must pay the fee, the amount
of which shall be more than that of the
renewal fee.
Art.151. Without prejudice to the
provisions of Article 150, paragraphs 2 and
3, already extinguished marks may be the
subject of a new appropriation by third
parties.
In any event, collective marks rendered
invalid or lapsed may not be appropriated
for the same products, objects or services
before expiration of a period of three years,
by a new filing or be used for any purpose.
Art.152. The provisions of Articles 125
and 126 shall apply, mutatis mutandis, to
marks.
Title 2 – Trade names and
geographical names
Chapter 1 – Commercial denominations
Art.153. Subject to the provisions relating
to marks, especially those of Articles 130
to 133, as well as those of specific
legislations, a person engaged in industry
or trade may choose a commercial
denomination with a view to identifying
his firm subject to the conditions of
Articles 154 to 158.
Art.154. Anyone seeking to claim an
industrial property title to a commercial
denomination must be the first to have
made the filing with the competent
Ministry, while complying, mutatis
mutandis, with the conditions and
procedures provided for marks.
The title so delivered shall confer a right of
exclusive use on its holder.
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Art.155. Within the meaning of this Law,
a commercial denomination may designate
a trade name, company name or corporate
name.
The trade name shall be a designation
under which an economic operator, a
natural person, engages in business or
industry.
The company name shall be a name under
which a legal entity engages in business or
industry.
The corporate name shall be a corporate
denomination including the surnames of
one or more partners.
Art.156. Any person who uses his own
name to engage in business or industry
shall use it as a trade name.
The use of one’s own name as a trade
name or corporate name may not infringe
the rights of third parties.
In the event of homonyms, the person who
is the last to use his name as a trade name
or corporate name shall be bound to make
the necessary adjustments to avoid any
confusion, by adding other distinctive
elements.
Art.157. Trade names, company names
and corporate names shall be assignable
and transferable, inter vivos or upon death.
Nevertheless, a trade name may only be
assigned or transferred with the goodwill
to which it is connected.
Art.158. The unlawful use, directly or
indirectly, of a trade name, company name
or corporate name belonging to a third
party shall constitute an act of unfair
competition punishable by the penalties
provided for in Article 165, without
prejudice to the penalties contained in
other specific legislations.
Chapter 2 – Geographical indications
Art.159. Within the meaning of this Law,
a geographical indication shall refer to
either an appellation of origin or an
indication of source.
An appellation of origin shall refer to a
specific place – a locality, region or
country – used to distinguish one or more
products which come from that place and
whose characteristics are essentially due to
the geographical environment.
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An indication of source shall refer to an
expression or any sign used to indicate that
one or more products come from a specific
geographical place, locality, region or
country.
“Product” shall be defined as any good
(natural, crafts, agricultural or industrial)
capable of meeting the needs of the nation.
Art.160. Subject to the provisions of
Article 10 of the Paris Convention and
those of the Penal Code with regard to
transfer, the direct or indirect use of an
appellation of origin or an indication of
source shall be governed by the provisions
of Article 165.
The provisions of Article 154 shall also
apply, mutatis mutandis, to appellations of
origin and indications of source.
Enabling measures shall determine the
procedures for the registration of
appellations of origin and indications of
source.
Art.161. Appellations of origin or
indications of source which are false or
contrary to public order or morality may
not be protected.
The provisions of Article 158 shall apply
to appellations of origin and indications of
source.
Chapter 3 – Signs
Art.162. A sign shall be an external
signboard used by a merchant, industrialist
or any other economic operator concerned
with a view to characterizing his firm.
The sign may consist of an imagined name
or a name taken from a kind of industry or
business.
The provisions of Article 154 shall apply,
mutatis mutandis, to signs.
Art.163. Only original signs which are
not contrary to public order or morality
shall be protected.
Nevertheless, the reproduction of a product
from the business engaged in may not be
considered an original sign.
The provisions of Article 158 shall also
apply to signs.
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Part 4 – Miscellaneous,
transitional and final provisions
Title 1 –Miscellaneous provisions
Art.164. A fund for the promotion of
inventions and discoveries in the
Democratic Republic of Congo is hereby
established.
This fund shall be managed by the
Ministry responsible for industrial
property.
The fund for the promotion of inventions
and discoveries shall be supplied, inter
alia:
• by an initial endowment, the amount of
which shall be determined by enabling
measures;
• by a surcharge which may not exceed
10 per cent of each fee or license fee
provided for by this Law.
The other conditions and procedures for
management of the fund shall be
determined by enabling measures.
Art.165. Subject to the provisions relating
to counterfeiting and other specific texts, in
particular the Penal Code and the Code of
Commerce, OrdinanceLaw No. 41/63 of
February 24, 1950 regulating unfair
competition, as amended to date, shall
apply to industrial property.
Art.166. By way of derogation from the
provisions of OrdinanceLaw No. 68i248
of July 10, 1968, as amended to date,
relating to the judicial system and
jurisdiction, matters relating to industrial
property shall fall within the jurisdiction of
the higher courts.
Art.167. Any dispute arising from the
enforcement and/or interpretation of this
Law shall fall under the jurisdiction of
either the Ministry responsible for
industrial property or the competent courts.
Title 2 – Transitional provisions
Art.168. The industrial property rights
arising from applications which have been
duly filed prior to the entry into force of
this Law shall remain valid, within the
conditions and procedures set out in this
Title.
Art.169. Industrial designs and marks
which have been duly registered before the
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entry into force of this Law must, on pain
of lapse, be confirmed in writing within a
period of two years, starting from the
publication of this Law in the Official
Gazette.
Filings confirmed under the provisions of
this Title shall benefit from the periods of
protection provided for in Articles 119 and
137 respectively.
The confirmation referred to in this Article
shall be subject to the payment of an ad
hoc fee, the amount of which shall be
determined by enabling measures.
Art.170. The requests for confirmation
referred to in Article 169 must be
addressed to the Ministry responsible for
industrial property, in accordance with the
provisions of Articles 137 to 142.
Art.171. Marks and industrial designs
which have lapsed under existing laws and
regulations relating to industrial property
and patents in general may not be
confirmed within the meaning of Article
169.
Art.172. NonCongolese agents who
regularly discharge their duties, on their
own or among themselves, in the
Democratic Republic of Congo must,
starting from the entry into force of this
Law, enter into partnership with the
nationals of their choice, in accordance
with the relevant legislation.
Title 3 – Final provisions
Art.173. Prior provisions relating to
patents, marks and industrial designs are
hereby repealed, in particular:
1. the Decree of the Sovereign King of
October 29, 1886 on Patents, as
amended to date;
2. the Decree of the Sovereign King of
April 26, 1888 on Factory Marks and
Trademarks, as amended to date;
3. the Royal Decree of April 24, 1922 on
Filings of Industrial Designs, as
amended to date;
4. any other provisions contrary to this
Law.
Art.174. This Law shall enter into force
on the date of its enactment.