Covid-19 prompts applicant-friendly requirements in Cape Verde

Even though Cape Verde has only a slight presence in international and regional treaties and conventions – it only became a signatory to the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property in 2008 – its Patent and Trademark Office (PTO) has always shown proof of a particular feature: its rigorousness with the formal requirements for filing industrial property rights, specifically supporting documentation.

The formal requirements for a trademark application in Cape Verde when the applicant is a company are as follows:

• an original and notarised power of attorney (plus Portuguese translation);
• a copy of the certificate of incorporation (plus Portuguese translation), which must prove that the activity carried out is related to trademark goods or services; and
• when claiming priority, an original or certified copy of the priority document (plus Portuguese translation).

When the applicant is an individual, the formal requirements are as follows:

• an original and notarised power of attorney (plus Portuguese translation);
• a copy of an identity card (plus Portuguese translation);
• a copy of the fiscal identification number (plus Portuguese translation); and
• when claiming priority, an original or certified copy of the priority document (plus Portuguese translation).

Besides these referred documents, applicants must complete and submit between three and four different forms, which repeat the same exact data – thus adding to the applicant’s burden.

So far, the PTO’s practice has been to require the submission of all the supporting documents at the moment of the filing, including the notary public certification. Late submission of documents is not accepted – formal examination is conducted at the time of filing, frequently resulting in a delay to the filing date.

However, there are some discrepancies between the PTO’s practice and what is set out in the IP Law. For instance, with regards to the priority document, Article 231 indicates that the PTO in fact has two months after notification to file an authenticated copy of this document; additionally, even though, in practice, the PTO behaves inflexibly with regard to the late submission of documents, Article 323 of the law provides that if some discrepancies are detected after the formal examination, applicants will be notified and given the opportunity to respond within the timeframe settled in the notification (the law does not specify any deadline).

The most significant difference lies in the fact that the PTO allows registrants to file only one original and notarised power of attorney, regardless of the number of trademark applications to be filed. The easing of this requirement is mostly welcome, since it reduces the costs for the certification of documents. 

In addition, the covid-19 pandemic is prompting new changes. As a result of the physical obstacles created by lockdown, the PTO introduced some temporary measures to ease the filing process, namely:

• allowing the submission of soft copies of the documents with no need of certification; and
• permitting all original and certified documents to be certified late.

Such measures are still in place at the time of writing and are running smoothly – a good rehearsal for a more modern way of filing.

As per the PTO’s feedback, there is an intention to move to a more modern system of filing and to keep pace with other African jurisdictions using such systems (eg, South Africa, Nigeria and the African Regional Intellectual Property Organisation), which could allow applicants to file applications online and technicians to perform a better and faster examination. In fact, the Cape Verdean PTO is developing a section for online services on its website, which may be the first seed for this modernisation.

Given the efforts being made in this area, it seems only a matter of time before digital filing arrives at Cape Verde.

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