Category: Articles

With the maiden edition of ICE Africa proving a resolute success, Yahaya Maikori, partner at Law Allianz and founder of Global Gaming Africa (global advisors to Clarion Events), explains how Clarion came to choose Africa as the second market to push its flagship brand in – and how gaming on the content will never be the same again.

It was December 2015. Holed up in the Hilton Paddington I was working feverishly with some colleagues on delivering gaming regulations meant for an African jurisdiction. The lead consultant, Mario Galea (the pioneer regulator for the Malta Gaming Commission) at some point made mention of ICE – describing it as “Europe’s largest gaming event” held annually in London.

I had never heard of it before. But having just successfully co-hosted the first industry event in Lagos, Nigeria – the Sports Betting West Africa Summit – my curiosity was piqued and I logged onto the ICE website. I noticed that, despite the apparent growth of sports betting on the continent, the agenda had nothing on Africa. Spotting an opportunity I sent a mail proposing that I speak about Africa on one of the sessions at the up coming 2016 ICE London event, which was shortly followed with a call in which I was asked to justify to the organizers the viability of such a participation.

So from speaking at ICE to working together to set up a first panel on Africa at WRB Berlin, my company – Global Gaming Africa – entered into an agreement with Clarion to help in its African expansion.

We started with hosting the World Regulatory Briefing (WRB) in Lagos in 2016, then Nairobi in 2017, because we figured that Africa’s biggest challenge was how to regulate the industry. Soon after these two events Clarion Events brought in the host of the Gaming Indaba to further assist with the “Gaming in Africa” event held in Johannesburg last year. Evidently “Gaming in Africa” was used to test the market.

While I can’t speak for Clarion Events or advance reasons on why and at which point they decided to transmute from their previous branded African events, to host- ing their most prestigious event there, one thing is certain: as with any successful commercial venture on this continent, the decision was taken after extensive consultation and market research.

Time has told that Clarion’s Africa move was a perspicacious one. Since our first collaboration, the industry in Africa has grown in leaps and bounds. The growing interests have started to stimulate investments in some of the key African markets – our law firm alone has handled three acquisitions this year.

The quest for knowledge by regulators and the various arms of government is indicative of the changing attitude towards gambling in Africa.

Some of the highlights of the maiden edition of “ICE Africa” included the unveiling of John Kamara (Co–Founder of Global Gaming Africa) as its Ambassador.

Hosting the event in the Sandton Convention Centre (SCC) was good for branding and positioning of the event as SCC is known to host some of the largest and most prestigious events in Africa. The two day exhibition comprised a products and services showcase, co- located ICE VOX-style conference pro- gramme and world class training and staff development modules, solutions from leading gaming brands and extensive networking opportunities.

ICE Africa witnessed over 2,000 participants during the event – not bad for a maiden event, especially when compared to SiGMA or even the 30,000 yearly participants at ICE London, which have taken several years to grow.

There was also a wealth of exhibitors and gaming professionals looking to source products and/or service solutions, covering all sectors: betting; bingo; casino; lottery; mobile; online; payments; social; sports betting, and street and others.

With ICE Africa, gaming in Africa will never be the same. The journey of Clarion Event’s foray into the African gaming market is definitely a good template for European companies trying to enter the African market.

As the African market continues to attract the attention of international operators, there is a growing demand for pan-African regulation, writes Yahaya Maikori. Whether that is justified, or indeed possible, remains unclear.

This sentiment is borne directly from the European experience. If such a proposition is not remotely possible in North America, or even Asia, why is it being called for in Africa? Why should an entire continent be subject to a single regulatory framework?

It’s borne out of ignorance, when everyday conversations can include phases such as “I am going to Africa” or “I have never been to Africa”. The continent is not a single entity.
The term “Africa” conceals much of the continent’s diversity paradoxes. For example, there is different jurisprudence governing the various legal systems of the 54 African nations. North Africa, comprising seven countries, is primarily based on Islamic law, which is morally against gambling.

In Egypt, for example, gambling is banned outright, though for tourism purposes they have made exceptions to allow foreigners to patronise casinos, while sports betting thrives illegally. Morocco, though a Muslim country, surprisingly allows almost all forms of gambling – perhaps the mixture of Islamic, European  and African influences, coupled with a thriving tourism industry, accounts for this tolerance.

Though both countries share a common jurisprudence, its application in each country is very different. As liberal as the Morocco may seem to be, I doubt that it will ever legislate for gambling industry.

In West Africa, only five members of the 17 Economic Community of West African States (ECOWAS) speak English as their official language. The rest are predominantly French, sprinkled with a few Portuguese and Dutch-speaking countries. Though intended to create a regional market, poor transportation connections, poor implementation of the various protocols and poor communication arising from language barrier has substantially hampered intraregional commerce between the member countries.

Ordinarily language shouldn’t be a barrier for trade in contemporary times, but in Africa languages have deeper cultural, social, moral and traditional significance compared to Europe which can derail such initiatives.

A cursory look at the various markets also indicates that legislative activity seems to grow along the same direction as their most active sub-sectors to the exclusion of the less vibrant ones.

For clarity, South Africa’s probably has the most mature gambling market on the continent. Yet despite the surge in payment providers and remote gaming it has refused to address remote gambling in its current draft law.

In Nigeria, online sports betting is recognised though it is yet to be regulated, but since sports betting has grown exponentially other sub-sectors such casino and slots – which were a big thing barely 30 years ago – have been neglected.

In any case, since the gambling sector’s significance is only just becoming apparent in most economies, it is yet to be recognised as an industry that warrants most African governments’ attention.

Having considered these challenges are there any viable vehicles for the advancement of this proposition? Perhaps African Union’s (formerly known as the Organization of African Unity), new initiative, known as the Africa continental free trade agreement (AFCTA) which seeks to organise Africa into one market, has the capacity to provide a vehicle for such an effort.

African Union (AU) has shifted its focus from addressing Africa’s political challenges to addressing its economy, which is projected to be worth $5tb when properly harnessed.

Intra-African commerce is currently estimated to comprise 15% of the continent’s trade, compared to Europe’s 71%. Not even the growth of ecommerce has improved intra-continental trade – a result of the fragmented nature of the continent’s economy and its infrastructural deficits, especially in information and communications technology.

AU’s initiative provides some hope but there are already fears on how to harmonise Africa’s heterogeneous economies, especially those with the largest income disparities. While opportunities for ecommerce are at the forefront of the ongoing negotiations, the reality is that the journey has just began and gambling will not be a priority in those negotiations.

With the above situation we are left with probably one likely vehicle, the Gaming Regulators Africa Forum (GRAF) – a platform for Africa regulators. It may hopefully be able to provide a possible solution by ensuring uniformity of regulation amongst all its members. Uniform regulation across most of Africa, though far from the ideal proposition, provides at least some certainty as to what to expect in most African markets in terms licensing and taxation, as well as legal certainty for operators.

Perhaps this is the first step towards establishing some form of pan African regulation.

Yahaya Maikori is the senior partner of Law Allianz, a leading African gaming and entertainment law firm. He also co- founded Global Gaming Group, a business that has advised regulators, companies, and startups across key markets in Africa’s growing gaming industry.

It is universally accepted, writes Yahaya Maikori, gaming lawyer at Lagos-based Law Allianz, that for any business to thrive in a foreign environment it will need the support of the locals. The problem for most operators, he says, is how to find a partner.

In spite of recent developments in America, the African gaming market still generates a lot of interest amongst European operators looking to expand beyond their shores. But in the mist of that palpable excitement is always the nagging question: “How do I go about finding my way around this populous continent?”
The reality is that most foreign operators have never had any kind of contact with Africa or Africans. Besides Africa is a continent of 52 countries, which is a large number of countries to choose from. The diversity of its inhabitants, race, religions, cultures, business ethics, communication and jurisprudence give subtle nuances to how even international best practices are implemented in the respective markets. Getting these right will determine the success or other- wise of such companies in their chosen markets.
During the early days of sports betting in Nigeria most of the South African companies that ventured into the market failed to make these adjustments and this led to their failure or early demise. Typically in South Africa, the sports betting model revolves around large stand alone retail halls. An attempt to replicate that exact model in Nigeria met with limited success; those who eventually became market leaders succeeded because they noted the peculiarities of the local market .So instead of setting up these large shops they built mid-sized shops and implemented a franchise /affiliate retail model which saw the affiliates set up smaller mini contact shops at their own cost – reducing the principal’s capital expenses and allowing the operator to focus its resources on providing software and support, advertisement and payouts. This model led to their quick expansion to all the nooks and crannies of the country.
It is universally accepted in the business world that for any business to thrive in a foreign environment it will need the support or the assistance of locals. The problem with most operators then is how to find a partner in their chosen market given the multitude of issues they must sieve through to arrive at a credible and reliable partner – and the multitude of variables and considerations it has to synthesize to arrive at a winning formula.
As a first step I always advise clients to secure the services of an industry professional to conduct thorough market research, which should take into cognizance peculiarities of the local market as ear- lier highlighted. Such a report if properly conducted will throw up several of the local issues the operator will have to contend with in the course of entering the intended market. The operator needs to juxtapose results of the research with its strength, weaknesses and objectives to reach some form of understanding of what kind of partnership is needed to drive its business.
By way of an example if the market research shows that the market is a grey market; an opera- tor which has decided to enter a given market may need to consider adding to its shopping list “a knowledgeable and respected industry practitioner” or alternatively “an influential person with strong government contacts” provided it also procures the services of a gaming lawyer or industry expert to handhold it as it navigates the unclear regulatory landscape.
In another scenario a client decided to partner with the owner of a media outfit in order to tap into the partner’s strong media entertainment industry contacts. In arriving at this decision, the operator noted that it was a very strong global brand, had adequate funding and could mobilize its global contacts to intervene in any local political issues. but prioritized that it needed to leverage on the entertainment industry to fur- ther localize and entrench its brand.
In a third situation, a foreign company which had strong online presence in Europe needed to tap into the retail market in order to access 93% percent of the local bet- ting market. It simply acquired a majority stake in a burgeoning local operation there by acquiring both a substantial size of the retail market as well as the team’s expertise and skills of the local market, then it went on to reconstitute the board to reflect its diversity and add other competences.
From the above examples it is important to note that no two operators are the same. Operators’ needs do not only differ from that of others but may need to be adapted or deployed to different markets which will bring about different results. Securing a local partner is never a science; at best it is a delicate art, which has its share of risks but taking these considerations can surely minimize the margin of error.
By way of caution no matter how pleasant and sophisticated a potential partner may appear to be, the operator needs to conduct thorough due diligence on the company, its directors and management to understand their business philosophy, ethical standards, accountability and their temperament from col- leagues, business associates, employees and suppliers.
Finally the roles, tasks, remuneration, targets of the prospective partner must be negotiated to the letter and documented; it will also help if further training in terms of international best practices, service delivery and dispute resolution is provided – this will bring about more clarity and reduce areas of potential conflict.

In the second part of his deep dive into key regulatory reforms being made in a number of African jurisdictions, Law Allianz founder Yahaya Maikori examines developments in a number of smaller markets.

Swaziland
Located right in the middle of South Africa, landlocked Swaziland has a population of barely 1.45 million people. The country’s industry is regulated by both the Casino Act of 1963 and the Lotteries Act of 1963.

There is just one sport betting licence available, which is renewed annually and covers the entire country for both online and retail betting. However, the betting industry in southern Africa is very retail-heavy, meaning that more investment will be required to expand the sector in Swaziland.

In 1998, Piggs Peak, one of the country’s land-based casinos, was granted a licence to offer
its products online. This roll-out was targeted at South African players, as Swaziland alone is too small to sustain an online market. Given the status of online casino in South Africa, the authorities there didn’t take kindly to this move. They successfully fought it in court, which ultimately stopped the operator from accepting South African players. Players from other countries still remain welcome, however.

In 2005, Swaziland shut down its national lottery, Swazi Lotto. However, in 2013, it awarded a 15-year licence to V Slots Swaziland, a subsidiary of a South African conglomerate, to offer lottery games in the country.

There are also two slot licences available, one of which was recently cancelled, effectively giving the remaining operator a monopoly. This licence holder currently operates around 300 machines across its gaming halls, though research has suggested there is scope for this number to be increased significantly.

Further changes may be forthcoming. In 2018 the Ministry of Tourism issued a request for proposals for consultancies to conduct a review of Swaziland’s gambling laws, though not much has been heard of the process since.

Cameroon
In 2015, the Senate president presented a draft bill seeking to restructure the gambling sector, with a view to imposing new controls on the industry.

This was in response to increased concerns about underage gambling, the industry’s potentially devastating effects on household income, family stability, mental health and loss of revenue by the government.

The public hearing included representations from various committees and bodies. However, the process appears to have ground to a halt, with the bill lost in day-to-day politics. All the while, the vices and illegal activity the government had sought to tackle continue unabated.

In the absence of any tangible action, but in furtherance of its mandate, the Ministry of Territory has resorted to a series of consultations with key stakeholders on how to regulate the industry, with a particular focus on an appropriate model of taxation.
Casinos and gaming halls are littered all over Cameroon, and the unchecked activities of illegal operators and lack of enforcement present a host of socio-economic challenges.

Although there are no popular local Cameroonian brands, illegal online websites are easily accessible.

Sierra Leone
In 1969 a lottery bill was passed into law, which saw the Sierra Leone State Lottery Company (SLSL) licensed and empowered to operate all games of chance on behalf of the state.

The company has existed since 1969 and originally operated as a monopoly. In 2006 a second lottery operator, Mercury International, was granted a licence by the president at the time, Ahmad Tejan Kabbah. This was renewed in 2018 for another three years.

The argument in certain quarters is that the president approved the second operator because of SLSL’s failure to deliver on its mandate. Sierra Leone is only just beginning to recover from its years of civil war and is struggling with a weak economy. This has affected internet connectivity, affordability and penetration, which has, in turn, hampered the growth of online gaming and particularly sports betting which is reliant on good connectivity.

Payments have also been a problem. However, as part of its financial inclusion strategy, the central bank has recently licensed the first mobile money operator in the country, which will most likely nudge the growth of the industry along.

For now, the lottery and pool are the most popular types of gambling and are played predominantly via retail channels. While attempts have been made to also move lottery to mobile platforms, the success – or otherwise – of this initiative remains to be seen.

Ghana
Until 2006, the principal legislation that governed gambling activity in Ghana was the 1960 Lotteries and Betting Act. This was replaced by the 2006 Gaming Act, which saw the establishment of the Gaming Commission of Ghana (GCG), the body that oversees most of the gambling activity in the country. Lottery, meanwhile, remains under the control of the National Lottery Authority.

In Ghana, sports betting is the most popular form of gambling, while the Ghanaian National Lottery contributes valuable funds for good causes in the country through its weekly draws.

The land-based casino world is underserved at the moment, with just four mid-sized casino establishments operating in the whole country, two in the capital Accra, and one each in Tema and Kumasi.

The GCG issues online gambling licences even though we know that there is no specific remote gaming regulation, and there is currently an embargo on new licences.

Early in the year, the GCG announced a rebranding as a way of repositioning its role amid efforts to crack down on illegal gambling and tackle issues such as money laundering. However,
it has been widely opined in some quarters that the rebranding should have come after reviewing the Gaming Act to give the GCG wider powers for enforcement – especially with respect to remote gaming.

The above observations notwithstanding, Ghana is noted for its stable gambling environment – the country has little of the volatility that has hurt the industry in many other African jurisdictions.

As far back as four years ago, the GCG toyed with the idea of implementing a central monitoring system and even went as far as inviting bids, but a change of leadership at the organisation may have stalled the process. The CEO has, however, assured stakeholders that the Act will be reviewed comprehensively in future.

Mauritius
In early 2018, the Gambling Regulatory Authority of Mauritius advertised for consultants to help review its 2007 Gambling Act.

From the terms of reference, it was evident that Mauritius was aiming to position itself as the Malta or Alderney of Africa. The strategy isn’t that far- fetched when you consider that its 1.3 million population does not provide enough of a market on which to build a viable industry.

The country is seen as a tax haven with over 44 tax treaties signed with other territories. This could make it a no- brainer for global operators looking to leverage the tax advantages to expand into African markets.

Though the consultancy contract was awarded on schedule, it somehow got scuttled during its implementation and the law has remained essentially the same since it was passed in 2007, albeit with minor improvements.

Yahaya Maikori is the senior partner of Law Allianz, a leading African gaming and entertainment law firm. He also co-founded Global Gaming Group, a business that has advised regulators, companies, and startups across key markets in Africa’s growing gaming industry.

1.            Introduction

Any international discussion of trademarks protection regime today must stem from the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS is administered under the platform of the World Trade Organisation (WTO) and is a detailed and comprehensive agreement establishing minimum standards for protection and enforcement of Intellectual Property. Nigeria is a member of the WTO., but there are still substantial differences and some similarities between the Trademarks Act and TRIPS; some of which this paper shall highlight.

2.            Definition of Trademarks

Article 15 of TRIPS defines a trademark as any sign or combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings. Section 67(1) of the Trademarks Act cap T13 Laws of the Federation of Nigeria 2004 on the other hand, defines a trademark as a mark used or proposed to be used in relation to goods for the purpose of indicating, or so as to indicate, a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark, whether with or without any indication of the identity of that person. In 2007, the then Minister of Commerce and Industry, acting under his powers in the Act, extended the classification of marks in the fourth schedule to the Trademark Act from classes 35 to 45, providing for varying services to be registered as trademarks.

3.      Regime for Registration of Trademarks

The Trademarks Act provides for registration in Parts A and B of the Trademarks Register. For registration in Part A, a trademark must have the quality of distinctiveness, i.e. contain at least the name of the applicant (represented in a special manner), or signature of the applicant, or an invented word (s), or a word (s) having no direct reference to the character, quality or geographical name of the goods or any other distinctive mark. While registration under Part B of the Register may only be obtained in the case where the mark is capable of distinguishing goods with which the proprietor is connected in the course of trade from goods in which no such connection exists. Marks that are names of single chemical element or compound, deceptive and/or scandalous cannot be registered under the Trademarks Act. While TRIPS makes no provision for separate registers or regimes, it obliges criteria of distinguishability and leaves other criterion to the discretion of its members.

4.      Third Party Rights in Registered Trademarks

In Article 16 of TRIPS, it is provided that a proprietor of a registered trademark shall have the exclusive right to prevent third party usage of an identical or similar mark in the course of trade in goods and services identical to his, where such use is likely to cause confusion. Under Nigerian law the right is similar, but the difference is that the proprietor has a right to exclusive use of the mark subject to vested rights of earlier users. See Sections 5, 6, 7 and 8 of the Trademarks Act.

5.      Protection of Well-known or Famous Marks

Under the said Article 16 of TRIPS, ‘well known’ or ‘famous’ marks are protectable, without or without registration. The Trademarks Act, however, does not provide for protection of well-known or famous marks and as such, even though Nigeria is obliged to enforce TRIPS provisions and Paris Convention for the Protection of Industrial Property (which also provides for protection of well-known marks), it may be difficult to enforce as these treaties have not yet been domesticated under Nigerian law and so it would appear that the only option for protecting such marks is by the common law action for passing off. See the case of Exxon v. Exxon Nominees [1989] Federal High Court Reports 1. In Section 7 of the Trade Marks Act, however, such well known/famous marks can be protected against their registered counterparts as the Trade Marks Act recognizes the rights of owner or user of unregistered trademarks, which are identical with or nearly resembling a registered trademark. This is provided that the unregistered owner or user can show that he or his predecessor in title has continuously used that trademark from a date previous to the use or registration by the registered user.

6.      Protection of Geographical Indications

Geographical indications identify goods as originating from a particular territory or region in a country, and indicative of quality, reputation or other characteristics attributable to that territory or region. These indications are protected under TRIPS and members could either refuse granting registration or even nullify same where there is a false or misleading indication. While the Trademarks Act does not specifically provide for Geographical Indications, they can be subsumed under Section 43 (1) of the Trademarks Act. the regime of certification marks, i.e. marks that certified as to origin, quality or other characteristic.

7.      Conclusion

The TRIPS Agreement is broad based and applicable to several countries around the world. It represents the uniform standards, predictability and consensus in the use and protection of intellectual property rights as key factors for trade among nations and the entities operating within their respective territories.

While Nigeria has substantially complied the provisions of TRIPS, she is still in default of several key provisions, the most important of which are the provisions for the protection of well-known or famous marks. It is hoped that upon the enactment or amendment of the existing legislation these issue shall be resolved.