A Remarkable Journey Of Transformation
By Ahmed Ali M. Al-Mukhaini & Jalpa Mehta
Posted: 3rd January 2014 08:39Sultanate of Oman has always been a unique offering to the modern world, with rich archaeological, historical and traditional IP intensive assets wrapped in its lap depicting Omani lifestyle in a unique way. The value of these assets and the need to protect them was realised as early as 1976 when the National Heritage Protection law was promulgated. Its objective was the protection and preservation of all types of monuments and antiquities, prohibiting, thereby, any action that would result in their extinction or degradation, such as exports of property of historical significance.
In 1977, Oman joined the UNESCO treaty related to measures and control of illegal import and export of cultural property. This was followed by creating a series of cultural organisations, such as: Omani Society for Fine Arts, Omani Center for Traditional Music, Royal Oman Symphony Orchestra, Public Authority for Craft Industries, and Omani Literary Society. Their mandate was to conserve and encourage Omanis to create innovative ideas and products, providing at the same time safeguards against theft or degradation.
Identifying IP and protecting them locally and globally remain key challenges to all businesses, whether start-ups or well established global conglomerates. This significance of IP stems from: (a) its ability to convert potential liability to benefits, through protecting product identity; (b) providing ideas and innovation with sufficient eco-system to be systematically incubated and developed into full products or services, through patenting, copyrighting and registering trademarks; and (c) allowing growth outside normal legal and geographical jurisdictions, through the use of multilateral arrangements and bodies.
In Oman, the importance of identifying intangible and exposable selling points and advantages, and converting them into tangible, profitable and protectable assets through IP was relatively unknown amongst businesses and people generally. The opportunity of appreciating their value and utilising them for gaining a competitive advantage over others was often missed until 1987, when the first law of trademarks was passed. Though this law laid down certain provisions for protecting IP, it was for trademarks mainly. The other components of IP remained vague until 1997, when Oman acceded to the World Intellectual Property Organization (WIPO). Prior to that, Oman took a bold step along bringing her laws in line with international law, when the Basic Law of the State (Royal Decree 101/ 1996) was promulgated. It instituted a monist legal system in Oman.
The period from 1998-2008 witnessed substantial enactment of laws protecting trademarks, patents, copyrights, and geographical indications. Moreover, the legal codes pertaining to the protection of IP were reformed through three major tracks:
- Consolidation of individual IPR related laws under one umbrella: Industrial Properties Rights Law (promulgated vide Royal Decree 67/ 2008);
- Ratification of WIPO administered treaties: Brussels Convention, Paris Convention, Bern Convention, Budapest Treaty, Madrid Agreement, Trademark and Patent law Treaties; and
- Using FTAs and BITs to further interweave the stringent measures and compatibility requirements enshrined in international law.(1) Recent examples include: Oman-USA FTA and GCC-Singapore FTA.
Though oil was discovered in 1967, agriculture and fisheries constituted at least 70% of Oman’s GDP until 1970. Since then, oil has been considered as the main driver of the Omani economy with unexpected oil revenues and increasing oil price. However, due to limited oil reserves coupled with growth in Omani job seekers, it became imperative for the Omani economy to diversify its base. Oman economic vision 2020 aimed to move the economy towards industrialisation, real estate, tourism, construction and engineering, media and telecommunication sectors. This was hoped to encourage foreign investment, increase international trade and provide job opportunities. The development and growth of these sectors constantly demand innovative and creative ideas and designs, novel methods and technology. While all the key forms of IP exist in these sectors, the general attitude towards IP has been characterised as laid back.
A pioneering sector is tourism. It has been accorded a special attention in the economic vision Oman 2020 due to the volume of job opportunities it usually provides and its intersections with the other labour intensive sectors such as construction and real estate. However, it is often overlooked that before any ground breaking ceremony, several intellectual products have been produced. IP is created with the emergence of a design idea, layout and drawings in the minds of architects or engineers. All elements of construction, be it the unique design of a structure or the tools and novel methods or process adopted, qualify for protection as patents, copyrights, industrial designs, utility models, or trade secrets.
Oman has not only made huge investments to promote the tourism sector but have also taken considerable measures to protect tourism related IP. For example, over the last five years the mandate Public Authority of Handicraft Industries has been expanding. It is no longer confined to encouraging young Omanis to learn and sustain the transfer of knowledge of locally made handicrafts. It is now granted magisterial powers to monitor and seize products that seem to violate locally protected handicrafts, and arrest and prosecute offenders.
Moreover, the recent revival of the National Heritage Protection law grants magisterial powers to staffers of the Ministry of Heritage and Culture to monitor the market, borders and cargo for any imports in to the country which are deemed to be in violation of locally protected handicrafts or folklore.
Similarly, sustainability ofoil and gas reserves dependslargely on creating innovative methods and machinery for exploration, production and use. These could easily be qualified for protection as patent, utility design or trade secret.
Adding an IP value to Omani products would be a catalyst to increasing exports of Omani products worldwide. International experience suggests that enforced IP rights ensure authenticity, originality and sustained expansion of products, which international markets rely on.
The creators and the actual owners of these IPs are unaware and rather relaxed in taking steps to protect their assets or enter into nondisclosure or confidentiality agreements to protect their trade secrets. The IP issues therefore lie hidden and come to light only when dispute arises and in most cases by then it is too late to mitigate damages.
Another IP issue revolving around these sectors is “Works for Hire”. Though the IP laws in Oman do not lay down clear and concise provisions for ownership of IP in such works, it does not prohibit anyone to protect their IP by entering in to individual contracts between the parties underlying the rights of ownership, but the owners of IP most often do not realise their rights and do not take steps to protect them and often the fruits are enjoyed by others.
All IP tools, namely trademarks, patents, utility models, industrial designs, semiconductor topographies, geographical indications as well as protection against unfair competition, are enshrined in Omani laws. The procedures for registering and establishing these IP rights in Oman are simple and straightforward. Applications are to be made at the Registrar of Intellectual Property Office (“Registrar”) in Ministry of Commerce and Industry which are then examined for to ensure sufficiency of documentation and registerable IP value. Subject to compliance with conditions set out in the law and no opposition, IP rights are then granted to the owner.
What is important to note in relation to trademarks is that, unlike some other jurisdictions, a trademark registration in Oman becomes undebatable if it gains continuous use for period of three years without any successful legal action during this period. Furthermore, as Oman is a party to all the major conventions and treaties, the scope of protection extends to not only national level but also regional and international level.
Businesses in Oman are now increasingly aware of the importance of IP. Several of them have taken steps to protect their IP assets but the majority remain unaware and aloof. They fail to understand the value of their IPs and surrounding risks in a globalised economy. This is of great impact for SMEs, where IP accounts for a large percentage of a start-up SME’s value.
“The runway is ready for the take-off, the passengers are in place, signal is given but to take the plane to great heights, the pilot has to initiate the engine and start the plane” IP is the pilot.
Ahmed Ali M. Al-Mukhaini is the Executive Manager of Said al Shahry & Partners (SASLO) and Chairman of SASLO Legal Training Center. He holds an MA in political economy from Durham University and a BSc (Hons.) in IT and Management from Glamorgan University. Ahmed served as the Assistant Secretary General for Information at the elected chamber of the bicameral parliament of Oman, where he also served as Chief Clerk for Permanent Committees, Director of the Inter-parliamentary and International Affairs Bureau. He delivers lectures and courses in several local and international institutions.
Ahmed can be contacted by email on firstname.lastname@example.org
Jalpa Mehta is a Corporate Commercial Lawyer at Said Al Shahry & Partners (SASLO). She holds the degrees of B.Com and LLB from Mumbai University, India and was a gold medallist in law.
She is enrolled at the Bar Council of Maharashtra and registered Trade Mark and Patent Attorney. She specialises in IP Law and has advised numerous clients on IPR protection at an international level. She has worked with a leading IP firm in Mumbai and as a Business Development and Event Manager at a marketing company in Oman. She additionally has experience in training, brand building and corporate events management.
Jalpa can be contacted by phone on +968 24636923 or alternatively via email at email@example.com
(1) Needless to say, such international mechanisms come with their own dispute resolution mechanisms providing investors with higher degrees of certainty and credibility.