Foreclosure by Tolerance in the Intellectual Property Law by Bejuka Mildred Alugu

In the Women’s IP World Annual 2025, Bejuka Mildred Alugu, Senior Managing Partner at BEJUKA-Elebe IP Sarl & Associates, Cameroon, examines the principle of foreclosure by tolerance and its growing impact on intellectual property enforcement in the OAPI region. She explains how inaction by IP owners can erode rights, diminish protection, and even result in forfeiture under the harmonised framework of the Bangui Agreement.

What is Foreclosure by Tolerance?

Rooted in property law and similar to adverse possession, foreclosure by tolerance arises when rights holders fail to enforce their IP rights over a prolonged period. In OAPI, this can occur when a trademark owner ignores infringing use for years, leading courts or authorities to view the rights as effectively abandoned.

The OAPI Framework

The OAPI region, comprising 17 African countries, is governed by the Bangui Agreement, which harmonises IP laws across its members. While the framework grants exclusive rights to IP holders, these rights require active enforcement. Inconsistent enforcement, high costs, and limited awareness mean rights holders sometimes tolerate infringement, which can eventually weaken their protection. Practical Illustrations

Bejuka presents a hypothetical case: if a brand tolerates a competitor’s use of a nearly identical mark for more than three years, the competitor may claim that the original rights holder has effectively acquiesced. This can lead to the erosion of the brand’s distinctiveness and the loss of enforceable rights. Challenges and Implications

• Loss of Rights: Prolonged tolerance can lead to trademarks losing distinctiveness or enforceability.

• Market Pressures: Litigation costs often deter action, encouraging tolerance at the expense of long-term rights.

• Awareness Gaps: Many entrepreneurs are unaware of the risks of inaction under the Bangui Agreement.

Recommendations

To reduce risks, Bejuka calls for:

• Public Awareness Campaigns to educate business owners and creators on the dangers of tolerance.

• Simplified Enforcement Mechanisms to make legal action more affordable and accessible.

• Clear Guidelines on acquiescence to help IP holders make informed enforcement decisions.

Conclusion

Foreclosure by tolerance poses a real threat in the OAPI region. Bejuka Mildred Alugu emphasises that proactive enforcement, combined with awareness and streamlined legal processes, is essential to protect IP rights and prevent the unintended forfeiture of valuable assets.

Read the full article in Women’s IP World Annual 2025, essential reading for IP professionals, policymakers, and entrepreneurs in Africa seeking to understand the risks of tolerance and the importance of proactive enforcement in the OAPI region.

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