Mbarara University of Science and Technology (MUST) Professor Patrick Ogwang has filed a trademark application at Uganda Registration Services Bureau (URSB) for Covidex.
This is according to a Gazette notice that was published in The Uganda Gazette. Trademarks are granted on first come basis.
Jena Herbals Uganda Limited owned by Ogwang filed the application on June 26, 2021 following a rope-pulling incident in which Mbarara University also claims ownership of the supplementary herbal remedy in the treatment of Covid-19.
City lawyer Jamina Apio of the Apio, Byabazaire, Musanase and Company Advocates, says Mbarara University still has a fighting chance.
“A party may oppose the registration of a trademark within 60 days of the date of advertisement in the Gazette by serving a notice of opposition, in duplicate, stating the grounds for opposition. The registrar will then cause the opposition to be served on the applicant. An applicant is afforded 42 days from the date of receipt of the notice of opposition to respond by counter-statement, laying out the grounds supporting their application.”
“Regarding evidence, the opponent is required to provide evidence by way of statutory declaration supporting their opposition within 42 days of receipt of the counter-statement,” Apio noted.
Jena Herbals says Covidex was developed by Prof Ogwang as a private innovation while Mbarara University claims that the drug is a product of its project.
Lawyer George William Alenyo, and Christian Chamber of Commerce, Agriculture, Industry, Trade and Tourism, in a joint suit claim that Prof Ogwang, a civil servant, developed the herbal medicinal drug using government funds at MUST, alongside his colleagues and yet he is singlehandedly claiming its patent rights as an individual.
“A declaration that the Covidex drug is a proprietary patent for the government of Uganda, having been developed on government funds, premises, and laboratories and by government public servants paid from the Consolidated Fund,” the petitioners plead to court.
“An order of permanent injunction against the 1st defendant (Prof Ogwang) from claiming patent or Intellectual Property (IP) over the Covidex drug,” they added.
A patent is an exclusive right granted for an invention or innovation.
This means patent rights protection invention cannot be commercially made, used, distributed, imported, or sold by others without the consent of the owner, in this case, Prof Ogwang.
According to the Trademarks Act, a registered trademark owner can enforce its rights through administrative, civil and criminal proceedings.
The law provides that the trademark owner is entitled to claim damages in respect of loss sustained by the trademark owner as a result of infringement, whether or not the person responsible for the infringement has been successfully prosecuted.
In general, punitive damages are at the discretion of the courts and, depending on the nature of the case and the extent of the damage, courts may award punitive damages in a successful infringement suit.
In civil proceedings, the cause of action is infringement.
In criminal proceedings, offences include: forging or counterfeiting a trademark; false entries on the register; falsely representing a trademark as registered; unlawful removal of a registered trademark from trademarked goods; falsely applying a registered trademark; and selling goods with false marks.
Already, Jena Herbals has threatened to sue Mbarara University for Shs100bn over alleged illegal use of Covidex and its two other products to solicit for government funds from Ministry of Science, Innovation and Technology.
This, effectively gives Prof Ogwang, the legal advantage over his employers should the application, now published in National Gazzette be approved.
Alenyo and co-petitioners through their lawyers of Katongole & Co. Advocates, want court to issue an order against Uganda Revenue Authority, to consolidate all Covidex and other viral treatment drugs returns and sales into the Consolidated Fund.
They also want court to issue an order against the NFA to extract agreements for forest access and extraction of the species Warburgia Ugandenis from the forest with the government and not with Prof Ogwang or his company, Jena Herbal U Ltd.
Further, the petitioners want court to issue an order against Mbarara University to enforce the Public Service Standing Orders and the Service Order Protocol of the university staff against Prof Ogwang.