Botswana
- Trade Related Agreements
Botswana
has a free market economy and is a member of the international bodies
responsible for intellectual property such as the World Trade Organization
(WTO) and World Intellectual Property Organization (WIPO), to strengthen
and ensure the sustainability of the economy. In order to
regulate intellectual property at the time of independence, Botswana
adopted the UK Trade Marks, Patents and Designs Protection Act which
was repealed by the Industrial Property Act. After joining
the WIPO, Botswana participated in the negotiations of the Trade
Related Intellectual Property (TRIPs) rights. The main objectives
of the TRIPs Agreement are to create a multilateral framework of
principles, rules and disciplines that regulate international trade
in counterfeit goods and to strengthen commitments to resolve tensions
on trade-related IP matters. The intellectual property rights
protected under the TRIPs Agreement are copyright and related rights,
trade marks, geographical and indications, industrial designs, patents,
layout designs of integrated circuits and protection of undisclosed
information and enforcement against infringement of the existing
judicial system.
Botswana
is a member of the Paris Convention, Berne Convention and Patent
Cooperation Treaty and has legislated on intellectual property rights
to conform to the TRIPs Agreements. It has established the
Trade Marks, Patents and Designs Office under the Department of
Companies of the Ministry of Trade and Industry. The Industrial
Property Act has incorporated the Paris Convention for the Protection
of Industrial Property and Trade Related Aspects of Intellectual
Property Rights.
A patent
for an invention may be exploited in Botswana once the owner has
been authorized to do so in writing, exploitation being defined
as making, importing into Botswana, offering for sale, selling or
using the product, or stocking the product for purposes of offering
for sale or selling. The owner of a patent may institute court
proceedings against a person who infringes the atent by exploiting
the patent without authorization, and may claim relief by way of
interdict, recovery of the infringing goods, damages and an account
of profits derived from such infringement. A person may, after
three years from the date the patent is granted, apply to the High
Court for a compulsory licence on the grounds that the market for
the patented invention is not being supplied or is not being supplied
on reasonable terms.
For a utility
model certificate to be granted it must be new and industrially
applicable. The duration of a utility model certificate is
seven years. If an industrial design is new, it can be registered.
The duration of a registered design is five years and it may be
renewed for further consecutive periods of five years upon payment
of renewal fee. The registration of the design may be invalidated
if it does not conform to the requirement of drawings and specimen.
For the registration of a mark, the Act is consistent with the Paris
Convention and the TRIPs Agreement on registration of marks with
respect to goods and services relating to distinctiveness
as not to confuse or mislead the public. The rights in the
registered mark may be transferred by cession, assignment, testamentary
disposition or by operation of law. Any person may institute
legal proceedings against someone who infringes a registered mark.
There are
provisions on the registration of collective marks or licensing
of marks. In this respect, the contract must provide for effective
control of the quality of the goods or services by the licensor
regarding the licensee concerned. Licensing of marks or collective
marks may be invalidated if it can be proved that they are used
in a manner likely to deceive trade circles as to the origin or
characteristics of the goods or services. A trade name is
protected provided it should not be contrary to public order or
morality or liable to deceive the public or trade circles.
Botswana
has substantially complied with international agreements, particularly
the TRIPs Agreement. The legislative acts provide forms of
protection to suit the local practices within the spirit of the
TRIPs Agreement which emphasizes minimum standard setting rather
than harmonization. The big issues that have been addressed
include: neighbouring rights, rental or lending rights, protection
of computer programs, terms of protection for intellectual property
rights, compulsory licensing, layout designs, enforcement procedures,
copyrights, economic rights, and the other forms of IP under the
international conventions.
For any
queries relating to our services and costs, please feel free to
contact us at info@iprfirm.com.
IPR
FIRM.COM - Online IPR Law Firm, India – Trade Marks, Copyright Registration,
Delhi, India
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