Confusion, unfair competition and legal action in OAPI countries

This paper analyses the interpretation of confusion and the consequences it has on legal action, considering its compliance with the international framework and with regard to the case law of the African Intellectual Property Organization (OAPI) Member States.It argues that provisions of the Bangui Agreement (2015), in particular Annex VIII on unfair competition, are in compliance with international agreements, and the substantial interpretation of confusion made by the case law of the OAPI countries is appropriate.Although OAPI statutory bodies have the possibility to appreciate likelihood of confusion, only the judicial judges have the ultimate authority to give a binding interpretation.When confusion concerns a registered intellectual property right (IPR), a plaintiff can introduce both an action for infringement and an action for unfair competition, or only one of these actions. However, the action for unfair competition has a larger spectrum; it can be introduced even when there is no registered IPR, provided that a separate fault is demonstrated, in combination with the other constitutive elements of unfair competition. Reference made by judges either to national civil liability provisions, to Annex VIII, or to both provisions, as the legal basis of the action for unfair competition, should be harmonized in favour of Annex VIII, even if, in practice, it has not proved to be damaging for any litigant.