A Practitioner’s Perspective, with a Focus on Lesotho by Zurayda Mayet
Intellectual property (“IP”) has quietly become the most valuable asset most businesses own. Industry analyses suggest that intangible assets – brands, technology, know-how and goodwill, account for the overwhelming majority of the market value of the world’s leading companies, by some estimates as much as 90 per cent or more of the value of the top S&P 500 corporations.
Against that backdrop, IP can no longer be treated as a narrow specialism reserved for a handful of registration agents. It cuts across mergers and acquisitions, due diligence, commercial contracting, tax, and employment law. A poorly drafted employment agreement that fails to allocate ownership of work created by an employee, or a distribution contract silent on brand usage at termination, can quietly destroy value that took years to build. This article draws together current themes in African IP practice and considers what they mean for businesses operating in, or expanding into, the Kingdom of Lesotho.
Why Intellectual Property Belongs in Every Transaction
The central message for commercial clients is straightforward: never assume that the most valuable thing your business owns is properly protected. IP is not confined to patents and trade marks. It encompasses copyrights, registered designs, trade secrets, know-how, goodwill and reputation – much of which never appears on a balance sheet, yet underpins enterprise value.
In mergers and acquisitions, IP due diligence is now standard practice rather than an optional extra. The essential questions are deceptively simple: Who owns the IP? Is it properly registered? Has it been validly assigned? Can it lawfully be transferred as part of the deal?
Where ownership is unclear or registrations are missing, the consequences are real. Valuations are undermined, warranties are breached, and buyers are exposed to post-acquisition disputes over assets they believed they had acquired. Because IP frequently represents a significant portion of a target’s purchase price, the cost of getting due diligence wrong is rarely trivial.
A Fragmented Continent: The African IP Landscape
Africa does not have a single intellectual property system. It has fifty-four jurisdictions, each with its own statutes, registries, procedures and enforcement culture. There is, in short, no one-size-fits-all approach. Some jurisdictions offer efficient, predictable processes; others are characterised by delay, high cost and limited judicial familiarity with IP principles.
This fragmentation is not merely an administrative inconvenience. It dictates strategy. The protection that secures a brand in one country may be worthless across the border, and an enforcement tactic that succeeds in one forum may be futile in another. Practical experience, and close collaboration with local counsel, therefore matter as much as black-letter law.
Lessons from the Region
Mozambique. Mozambique illustrates how costly enforcement can become where rights are not secured early. Litigation there has been known to run for over a decade. In a widely cited example, a major telecommunications operator was unable to use its own brand name in the country because a local entity had pre-emptively registered it. The operator was forced to trade under an abbreviated name for years and reportedly paid a substantial sum to recover its mark. This is the classic pattern of “brand squatting” – local actors registering well-known foreign marks in order to extract a fee.
Nigeria. In Nigeria, trade mark protection is comparatively robust, but copyright registration offers only surface-level evidence and litigation is slow, particularly where originality or first use must be proved. Practitioners therefore favour proactive registration and pragmatic enforcement – for instance, using the Corporate Affairs Commission to strike out infringing company names rather than relying solely on the courts. The systemic strain is real: firms have at times supported under-resourced registries simply to keep them operational.
First-to-File and the Strategic Imperative
Many African jurisdictions – including Lesotho – operate on a first-to-file basis, meaning that the first party to file a trade mark generally enjoys superior rights, even over a business that has used the mark for years without registering it. For established brands, contesting an opportunistic filing can mean years of litigation. Prevention is invariably cheaper than cure.
The practical lesson is to register early and register defensively, rather than to assume that a reputation built elsewhere will be respected locally.
Regional and International Frameworks
While there is no continent-wide IP system, two regional organisations reduce some of the friction of multi-country filing:
- OAPI (Organisation Africaine de la Propriété Intellectuelle): covering predominantly Francophone states, OAPI operates as a unified system in which a single application grants protection across all member states.
- ARIPO (African Regional Intellectual Property Organisation): covering predominantly Anglophone states – including Lesotho – ARIPO allows an applicant to file a single application designating multiple member states. The Banjul Protocol governs trade marks and the Harare Protocol governs patents and industrial designs.
Two important caveats apply. First, even under these systems, enforcement remains a national matter, and local courts may lack deep IP expertise. Second, the Madrid Protocol for the international registration of marks has had only limited practical effect in much of Africa, because relatively few states have given it full domestic effect. As discussed below, this gap between treaty membership and domestic implementation is precisely the issue that demands caution in Lesotho.
Encouraging Legislative Developments
Several jurisdictions have modernised their regimes. Zambia now permits the registration of service marks and recognises non-traditional marks such as three-dimensional shapes and sounds. Kenya and Tanzania have strengthened customs enforcement, empowering authorities to seize counterfeit goods with penalties extending to fines and imprisonment. South Africa has proposed substantive examination of patents and the modernisation of its copyright law. Progress is real, even if inconsistent implementation and limited resources remain persistent obstacles.
Building a Proactive IP Strategy
The recurring theme across the region is that IP management should be proactive rather than reactive. Sound practice rests on four pillars:
- Defensive registrations. Register marks not only in current markets but also in countries targeted for expansion within the next five years.
- Domain names. Domains are allocated on a first-come, first-served basis; securing relevant domains early is essential.
- Searches and clearance. Conduct trade mark searches before entering a market to confirm freedom to operate and avoid costly collisions.
- Contractual safeguards. Build clear IP clauses into agreements with distributors, manufacturers and partners, addressing ownership and permitted use both during and after the relationship.
Anti-Counterfeiting and Enforcement
Counterfeiting remains a serious problem, particularly in pharmaceuticals, luxury goods and fast-moving consumer goods. Effective enforcement tends to combine several measures: recording trade marks with customs authorities to intercept counterfeit imports; training customs officers, police and commercial crime units to distinguish genuine from fake products; conducting carefully co-ordinated raids while preserving confidentiality; and investigating supply chains to locate the source of manufacture.
Creative, commercial solutions can be as effective as litigation. In one Nigerian example, counterfeiters were refilling used spirit bottles; the brand owner addressed the problem at its root by offering consumers a refund for returning empty bottles, thereby removing the supply of containers. Where goods are manufactured abroad, registering and recording marks with customs in the country of manufacture – China being the prime example, alongside Vietnam, Malaysia and India – can block counterfeit exports at source.
Emerging Frontiers: Artificial Intelligence and Personality Rights
Artificial intelligence poses novel questions that the law is only beginning to answer.
- Ownership of AI-generated output. Where an AI tool generates a logo or code, who owns the resulting copyright? Current thinking requires sufficient human skill and labour in the prompting and refinement of the output; a vague instruction such as “create a logo” may confer no ownership at all.
- Risk of infringement. AI-generated material may unknowingly reproduce protected works drawn from its training data, exposing the user to infringement claims.
- Professional liability. Lawyers who rely on AI to draft submissions have faced disciplinary consequences where the tool fabricated non-existent case authority. The profession’s duty of verification is undiminished by the technology.
Closely related are personality and “deepfake” concerns. Public figures are increasingly registering their likenesses as trade marks to guard against unauthorised synthetic use. Regulators – Nigeria among them – are developing national AI policies that seek to balance innovation against accountability, addressing liability, misinformation and deepfakes. Brands engaging influencers, in turn, are drafting detailed agreements covering IP usage rights, conduct standards, liability and termination, precisely because reputational risk now travels at the speed of social media.
Intellectual Property in Lesotho
For businesses operating in the Kingdom of Lesotho, the regional lessons above translate into a specific set of legal realities. Lesotho has a developing but recognisable IP framework that broadly conforms to international standards, including the obligations arising under the TRIPS Agreement.
The Statutory Framework
Industrial property in Lesotho, patents, trade marks and industrial designs, is governed principally by the Industrial Property Order, 1989, as amended by the Industrial Property (Amendment) Act, 1997, together with the accompanying regulations. Copyright is governed by the Copyright Order, 1989, supplemented by the Copyright Regulations of 2015. Industrial property is administered through the Registrar General’s Office under the Ministry of Law and Constitutional Affairs, while responsibility for copyright enforcement sits with the ministry responsible for trade and culture, reflecting the legislation’s focus on artistic works.
Lesotho is a member of the World Intellectual Property Organization and the World Trade Organization, and is a party to the Paris Convention, the Berne Convention, the Patent Cooperation Treaty and ARIPO. It is also a signatory to the Banjul and Madrid Protocols.
Key Features of Protection
- Trade marks. Lesotho operates a class-based system under the Nice Classification and permits multi-class applications. Applications undergo substantive examination for distinctiveness and conflict with earlier marks, followed by publication and a three-month opposition period. Registration typically takes in the region of eighteen to twenty-four months. A registration is valid for ten years from filing and is renewable indefinitely for further ten-year periods, but it is vulnerable to cancellation for non-use after three years.
- Patents. An invention must be novel, involve an inventive step and be capable of industrial application. The term of protection under the Industrial Property Order is fifteen years from filing, subject to the payment of maintenance fees. National-phase entry is available via the PCT, and ARIPO offers a further regional route.
- Industrial designs. Protection is available for the ornamental or aesthetic features of a product, with an initial term capable of extension up to a maximum of fifteen years, subject to renewal.
- Copyright. Protection arises automatically on creation, consistent with Berne Convention principles, and no registration is required for the right to subsist.
The Critical Caveat: Treaty Membership Is Not Domestic Implementation
The single most important point for any rights holder in Lesotho is this: although Lesotho is a signatory to the Banjul and Madrid Protocols, it has not amended its national legislation to give those Protocols full domestic effect. As a result, there is genuine uncertainty as to whether trade marks obtained internationally through ARIPO or WIPO are enforceable in the Lesotho courts.
The prudent course is therefore clear. Notwithstanding the convenience of a single regional or international filing, a domestic registration through the Registrar General’s Office remains the safer route to ensure enforceability within Lesotho. Rights holders who rely solely on an ARIPO or Madrid designation may find their position materially weaker than they assume, a direct local illustration of the wider African theme that one should never assume IP is registered and enforceable simply because a certificate exists somewhere.
Enforcement in Practice
Lesotho’s legal structures for protecting IP are relatively sound, and serious infringement is not endemic. The more common complaint concerns enforcement: in practice it can be slower and less predictable than rights holders would wish, and customs and administrative mechanisms are still developing. The owner of a registered right may enforce it through the courts or, in appropriate cases, through administrative remedies. As elsewhere in the region, the most effective strategy combines early domestic registration, customs recordal where available, and close co-operation with local advisers who understand how the system works in practice.
Practical Takeaways for Clients
- Never assume that IP is registered or enforceable, even where a business has traded in a country for many years; verify ownership and registration status before relying on it.
- In Lesotho specifically, secure a domestic registration through the Registrar General’s Office rather than relying solely on an ARIPO or Madrid designation, given the gap between treaty membership and domestic implementation.
- File early and defensively in first-to-file jurisdictions, including markets earmarked for expansion within the next five years.
- Treat IP as integral to every transaction, M&A, employment, distribution and licensing, not as a peripheral concern.
- Engage local counsel. Regional diversity means that sound strategy depends on jurisdiction-specific knowledge and relationships.
Conclusion
Intellectual property has moved to the centre of commercial value, and Africa’s fragmented legal landscape rewards those who plan ahead and penalises those who do not. The future of African IP lies in harmonisation, capacity building and stronger enforcement. For businesses in Lesotho, the immediate priority is more concrete: to protect their rights domestically, deliberately and early, so that the value they have built is secure when it matters most.
About Mayet & Associates
Mayet & Associates advises businesses in Lesotho and across the region on the protection, commercialisation and enforcement of intellectual property, including trade mark and patent strategy, IP due diligence, commercial contracting and dispute resolution. To discuss how these developments affect your business, please contact our offices.
This article is provided for general information only and does not constitute legal advice. Specific matters should be referred to a qualified legal practitioner.