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Enforcement of IPRs in Madagascar

Madagascar

Enforcement of IPRs
Enforcement capacity is quite limited due to resource constraints, weakness of the judicial system, and a lack of awareness of IPRs among the consumers.
Foodstuffs, clothing items, mobile phones, cigarettes, and cosmetics are the goods that most often face counterfeiting and piracy in Madagascar.
No
They are as follows:
  • The LAW No. 94-036 of 18 SEPTEMBER 1995 on Literary and Artistic Property (J.O.1 No. 2333 of 06.11.95, p. 3554)
  • The Ordinance No. 89-019 Establishing Arrangements for the Protection of Industrial Property in Madagascar (of July 31, 1989)
Patents, Trademarks, Industrial Designs, Trade names, and Copyright are the different types of IPRs protected by IPR enforcement in Madagascar.
In Madagascar, trademark registration is mandatory to be granted rights over a trademark, as it is a ‘first to file’ jurisdiction. Only in some exceptional cases can an unregistered trademark be protected. The trademark applications must be filed with the Malagasy Industrial Property Office.
While in some countries copyright protection is automatic as soon as the work is saved in material form, registering for copyright in Madagascar is extremely important in order for the copyright holder to have the all-important proof of copyright. Therefore, to support a claim of copyright, it is recommended that registration is obtained. Also, it is advised to carry a though examination on the prevalent practices to identify frequent offenders for preparing oneself in advance. Seeking assistance on the same from a local counsel may also be helpful.
Yes
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Yes
Yes
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
At the request of the complainant, the court may order the publication of the conviction and sentence, either in full or extracts thereof, in the newspapers of his choice and the posting of said judgments in the places indicated by him, in particular on the doors of the domicile and of all the premises or theatres of the persons convicted, at the expense of the latter, while the cost of this publication shall not, however, exceed the maximum amount of the fine incurred. Where posting is ordered, the court shall fix the dimensions of the poster and the typographic characters that must be used for printing it. The court must set the period during which this posting is to be kept up, a period that must not exceed 15 days. The removal, concealment, or tearing up of posters, in whole or in part, shall be punished by a fine of between FMG 5,000 and FMG 15,000. In the event of repeat offending, the fine shall be increased to between FMG 20,000 and FMG 100,000, and imprisonment of between 11 days and 01 month may be ordered.
No
Yes
Yes
A) Responsible Authority - Criminal Court, High Court, Supreme Court.
B) Imprisonment Term - Trademarks and Patents: 06 months to 03 years (double in case of repetition of offence); Copyright: 06 months to 05 years
C) Monetary Fine - Designs, Trademarks, and Patents: MGF 500,000 and 10,000,000 (double in case of repetition of offence); and Copyright: FMG 100,000 and FMG 10,000,000, but may extend to 20,000,000 FMG, where the guilty is a habitual offender.
At the request of the complainant, the court may order the publication of the conviction and sentence, either in full or extracts thereof, in the newspapers of his choice and the posting of said judgments in the places indicated by him, in particular on the doors of the domicile and of all the premises or theatres of the persons convicted, at the expense of the latter, while the cost of this publication shall not, however, exceed the maximum amount of the fine incurred. Where posting is ordered, the court shall fix the dimensions of the poster and the typographic characters that must be used for printing it. The court must set the period during which this posting is to be kept up, a period that must not exceed 15 days. The removal, concealment, or tearing up of posters, in whole or in part, shall be punished by a fine of between FMG 5,000 and FMG 15,000. In the event of repeat offending, the fine shall be increased to between FMG 20,000 and FMG 100,000, and imprisonment of between 11 days and 01 month may be ordered.
No
Alternative dispute resolution is encouraged to prevent parties from being forced to endure a lengthy and costly procedure and to permit conciliation.
Hence, before or during the procedure, parties to litigation or arbitration may, by way of a transactional agreement, decide to put an end to the dispute between them. However, this is only an option proposed to the parties and not an obligation that could be imposed on them.
The Centre for Arbitration and Mediation of Madagascar has its own institutional rules for mediation. It has not been operational for several years; hence, not been used to facilitate mediations.
No
Yes
The remedies available under border control measures (customs) in Madagascar include destruction of goods, fine, and imprisonment.
N/A
The Customs may remove the goods from detention if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs.
Court Proceedings
Officially, authorities like Office Malgache des PropriétésIndustrielles (OMAPI), Official Gazette of Industrial Property, and the Office Malgache des Droits d’Auteurs (OMDA) protect against IP infringement; however, the enforcement capacity is limited due to resource constraints, including poor digitalization, weakness of the judicial system, and lack of awareness of intellectual property rights among businesses and consumers. Due to these constraints, the international investors face difficulties defending their interests. Madagascar neither tracks nor reports seizures of counterfeit goods, which are easily available in the local markets, as are unauthorized copies of famous brands, songs, and videos.