How the concept of morality is implemented at the African Intellectual Property Organisation

Inspired by Article 6 quinquies of the Paris Convention, Annex 3, Article 3(c) of the Bangui Agreement provides that a trademark cannot be registered if “it is contrary to public policy, morality or the law”. The legal concept of good morals is present in almost all WIPO members’ trademark legislation. In particular, morality comes into play when trademark applicants – whether deliberately or not – apply to register controversial marks (ie, marks that contain insulting, sexually connotative, racist or religious or culturally offensive words or images). In this regard, the African Intellectual Property Organisation (OAPI) has been explicitly assigned the right and duty to control the morality of every trademark filed before it, which is straightforward in some cases, but not all.

There are three main causes related to the difficulties of upholding the concept of good morals in trademark registrations at OAPI. The first two are common to all countries and institutions, namely:

• the absence of a precise legal definition of ‘morality’; and
• the conflict between morality and freedom of expression.

The third cause relates to the fact that the 17 OAPI member states have trademark laws in common, but have different understanding of morality. The cultural diversity in the regions is reflected in many different religions, traditions and languages, which means the concept of morality is not uniform across all states.

Trademark legislation in general, as well as the implementing regulations in the Bangui Agreement in particular, use the term ‘morality’ as if it is taken for granted. Rule 2 of the Regulations Under the Agreement Revising the Bangui Agreement (1977) specifies that “morality is understood to mean the moral customs and practices generally recognized by a group or society”. Rather than making it possible to grasp the specific meaning of the word, this definition refers to the words “moral customs and practices”, which are vague. Further, Rule 2 attaches legal effect to the moral values ​​of a group and therefore to the different customs and practices of the numerous groups present in the region.

In this context, morality is indefinable as it changes over time and varies according to localities and groups. Accordingly, the Bangui Agreement confers on OAPI the power to clarify the notion of morality in each region and to decide what conforms with this concept. OAPI must therefore consider a significant variation of the rules and ideals that each group living in the region puts forward as morality. Moreover, OAPI must refer to objective elements in its decisions; otherwise, it would be accused of arbitrariness. It must also take into consideration the negative effect that the over-zealous protection of trademark rights can have on the principle of free speech in each country. To regulate filings, OAPI must identify the behaviours that the average citizen would consider to be moral. This is difficult, as unless the behaviour in question is transliterated into a trademark and has created a public scandal, OAPI does not have any scientific support to assess what is moral for an average citizen of the region.

This is a co-published article, which was originally published in the World Trademark Review (WTR).