RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/343
20 March 2002
(02-1449)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Ghana to the questions posed by Australia, Canada,
the European Communities and their member States, Japan, Switzerland and the United States
By means of communications from the Permanent Mission of Ghana dated 7 and 15 March
2002, the Secretariat has received the following responses to questions posed by Australia, Canada,
the European Communities and their member States, Japan, Switzerland and the United States, as
circulated in documents IP/C/W/328, 261, 274, 258, 263, 263/Add.3 and 268, respectively.
_______________
AUSTRALIA
A. PATENTS (INCLUDING PLANT VARIETY PROTECTION )
1. How does your country provide protection for new plant varieties as required under
Article 27.3(b)?  If your legislation is based on the UPOV system, on which UPOV Act was it
modelled?  Can new plant varieties be protected by patent in your country?
Plant varieties in Ghana are to be protected by a sui generis system.  In this regard a draft
protection of Plant Varieties Act is to be laid before Parliament soon. The draft Plant Varieties Act
was modelled on the 1978 UPOV Act.  A new pl ant variety cannot be protected by patent.
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and
throughout) have been implemented.
Draft legislation on various aspects of Intellectual property have been prepared and are soon
to be laid before Parliament. The provisions in th e draft legislation fully comply with the obligation
under the TRIPS Agreement including the enforcement obligations under Articles 41-61.
2. What protection does your Copyright le gislation afford to “foreign works”?
Ghana is presently a Member of the Berne Convention, the Universal Copyright Convention,
(UCC) and the TRIPS Agreement.  Ghana has reciprocal obligations under the foregoing Conventionto protect works of Ghanaian citizens in a like manner as protection is extended to works of citizens
of the member countries to those conventions.  This obligation is explicitly provided for under
section 2(2)(iii)
 of the Copyright Law, Provisional National Defence Council ("PNDC") Law 110 of
1985.IP/C/W/343
Page 2
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. G ENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
Yes, Ghana's legislation contain measures necessary to protect public interest in sectors of
vital importance to the technological development of the country as stated in Article 8 of the TRIPS
Agreement.
Specifically, the existing Patent Law PNDC Law 305A and the draft legislation on Patent and
Layout-Design (Topographies) of Integrated Circuits contains the following provisions:
• Section 54 of the Patent Law PNDC Law 305, allows the government, in the public
interest, to exploit a patented Invention or the Sector Minister may designate a third
person to do so without the agreement of  the owner of the patent to whom an
adequate remuneration would be paid.
• Section 54 is however not consistent with Article 31 of the TRIPS Agreement which
requires certain obligations to be fulfilled for the use of the subject matter of a patentwithout the authorisation of the right holder.
• Section 13 of the draft law on Patents however contains measures necessary to protect
public health and nutrition and also promote the public interest in sectors of vitalimportance to the country's socio-economic and technology development as stated in
Article 8 of the TRIPS Agreement.
• The measures as stated in Section 13 of the draft Law on Patents are consistent with
Article 31 of the TRIPS Agreement which requires certain obligations to be fulfilled
for the use of the subject matter of Patent without the authorisation of the right holder.
• Article 31 also requires the authorisation of the use of the patented invention without
the consent of the right owner to be subjected to judicial review.
• Section 13(9) of the draft patent law allows a person aggrieved by the Minister's
decision to appeal to the courts.
• Section 16 of the draft law on Layout-Designs (Topographies) of Integrated Circuits
also contain provisions on exploitation by a government agency or third person in the
public interest, in particular, national security, nutrition health or the development of
other vital sectors of the national economy.
The provisions of Section 16 of the draft law on Layout-Designs (Topographies) of Integrated
Circuits are in full compliance with Article 31 of the TRIPS Agreement.
B. C
OPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of authors
in relation to their literary and artistic works, as  specified in Article 9 of the TRIPS Agreement whichIP/C/W/343
Page 3
requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the
Berne Convention (1971)).
Existing Law
The current legislation provides for the exclusive rights of authors in relation to their literary
and artistic works in accordance with Article 9 of the TRIPS Agreement and Articles 1-21 of the
Berne Convention.
Draft Law
The draft Copyright Bill goes further and provides rental right for works that are to be
accorded copyright protection such as sound recordings, audiovisual, literary works to mention a few.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Existing Law
The current Copyright Law PNDC Law 110, 1985 does not specifically mention computer
programmes. However, since computer programmes are regarded as literary works, copyright
protection is afforded to computer programmes.  However databases and compilations of data are
protected if the compilations are original in characte r and they involve some form of creativity.  The
law protects directories, anthologies, etc.  The present law does not provide for rental rights.
Draft Law
The draft law expressly includes computer programs as literary works whatever may be the mode or
form of expression.  The law also protects databases or compilations of data or any other materialwhich by reason of the selection or arrangement of contents constitute intellectual creations.
4. Please state whether your legislation provides for a rental right and, if so, the works to which
it applies.
Existing Law
PNDC Law 110 did not expressly provide for a rental right, but provided for a general
exclusive right.
Draft Law
The draft law provides that the author of any protected copyright work has the exclusive
economic right to authorise the commercial rental to the public of originals or copies of works.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Existing Law
Producers of sound recordings were granted the exclusive economic and moral rights in
accordance with the Berne Convention.IP/C/W/343
Page 4
Draft Law
Performers and Broadcasting Organizations are granted the following rights under the new
Copyright Act in compliance with the TRIPS Agr eement.  The exclusive right to authorize or
prohibit:
• The rebroadcasting, rental and distribution of fixation of a performance, or a
broadcast.
• The fixation of the performance or the broadcast.
• The reproduction of a fixation of its broadcast or the performance.
• The communication to the public of the performance if the recordings have been
published but equitable remuneration shall be paid to the performer or thecommunication to the public of the broadcaster.
6. Please state whether your legislation provides for any limitation or exception in relation to
each of the rights described above in accordance with the relevant provisions of the Berne and Rome
Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Draft Law
The Bill provides for an equitable remuneration to be paid to the right holder where the work
is already published and it has previously been fixed with the consent of the performer.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
Existing Law
a. Sound recordings, cinematographic works and broadcast protected until the expiration
of 50 years from the date of making of the work or 50 years from the work being
made available to the public.
b. Authors' rights are protected under the present law for the life of the authors and fifty
years after his death.
c. Performance rights are protected.
d. Photographic works are protected until the expiration of 50 years from the date of the
making of the recording.
e. The rights vested in the Republic of Ghana in respect of folklore exist in perpetuity.
f. The rights of a performer in respect of the performance are protected for a period of
fifty years in the present law from the end of the calendar year in which the
performance took place.
Draft Law
The new bill the increases the duration of protection of all the above rights to seventy years.IP/C/W/343
Page 5
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
The new Copyright Act took into consideration Article 18 of the Berne Convention and
Articles 9 and 14.6 of the TRIPS Agreement
C. T RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
Existing Law
A sign is not defined in the Trade Marks Act 1965, Act 270. However, a mark is defined as
follows: "mark" includes a device, brand, heading, label, ticket, name, signatures, word, letter,
numeral or any combination thereof.
Under the Trade Marks Act, a mark must be registered in order to be protectable without
prejudice to the common law remedy of passing off.
Sections 9 and 10 of the Act set out the conditions for the registration of a mark.Under Section 9, a trademark is registerable if it contains or consists of at least one of the
following particulars:
a. The name of a company, individual or firm, represented in a, special or particular
manner;
b. the signature of the applicant for registration or some predecessor in his business;c
. an invented word or invented words;
d. a word or words having no direct reference to the character or quality of the goods
and not being according to its ordinary signification a geographical name or a
surname;
e. any other distinctive mark.
The provisions of Section 10 of the Trade Marks Act provide for an alternative form of
registration based on the trademarks "capability of di stinguishing" as compared to "inherently adapted
to distinguish" as stated under section 9.
Draft Law
There is no definition of a sign in the draft law on Trade Mark.  However, a mark has been
defined as any sign or combination of signs capable of distinguishing the goods or services of oneundertaking from the goods or services of other undertaking including words such as personal names,
letters, numerals and figurative element.  Under the draft law on trademarks a trademark is
registerable if:
a. It is capable of distinguishing the applicant's goods or services from those of
others;IP/C/W/343
Page 6
b. it is not contrary to public order or morality;
c. it does not mislead consumers or trade circles as regards source or other
characteristics of the goods or services concerned;
d. it is not a mark of a state or intergovernmental international organisation except
with authorisations;
e. it is not a well-known mark belonging to another person.
10. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Existing Law
Under the Trade Marks Act, 1965 Act 270, service marks are not currently protectable.  Trade
Names are also currently not protectable under the Trade Marks Act.  Elements such as sound,
perfumes and containers are also not protectable under the Trade Marks Act.
Draft Law
Signs such as trade names are protected under the draft law.  Service marks will be
protectable under the draft law on Trademarks.  Elements such as sound, perfumes and containers are
not protected under the draft law on trademarks.
11. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a registration
in that respect.
Existing Law
Use is not a requirement for registration of a trademark under the Trade Marks Act.
Section 17(1) of the Trade Marks Act 1965 provides that any person claiming to be the proprietor of a
trademark used or proposed to be used by him may make an application for registration of a mark.
However the Registrar may take into consideration, according to Section 9(3) and 10(2) of the Trade
Marks Act, 1965 use of a mark in arriving at a decision on distinctiveness.
There is no definition of "use" in the Trade Marks Act.  However, the following provisions
are applicable under the Act:
• Under Section 20(1) of the Trade Marks Act, a trademark can be renewed indefinitely
by payment of the fee for renewal.
• However in accordance with Section 26(1)(a) a trademark can be taken off the
register by the court or the Registrar upon an application by, an aggrieved person onthe ground that the trade mark was registered without any bona fide intention on the
part of the applicant for registration that it should be used in relation to those goods
by him and that there has in fact been no bona fide use of the trade mark in relation to
those goods by the proprietor up to the date one month before the date of theapplication.
• Section 26(1)(b) also empowers the court or the Registrar upon an application to take
off from the register a trade mark for non-use for a continuous period of five years.IP/C/W/343
Page 7
Draft Law
There are no requirements for use as a condition for the registration of a mark in the draft law
on Trade Marks.
There is no definition of use in the draft law.  However, an interested person may apply for
the removal of trademark from the register in respect of any goods for which it is registered on the
ground that up to one month prior to the filing of the application it had not been used for a continuous
period of five years.
12. Please confirm whether or not your legislation permits that the registration of trademarks be
indefinitely renewable.
Existing Law
Section 20(1) of the Trade Marks Act permits a trademark to be renewed indefinitely.
Draft Law
A trademark can be renewed indefinitely under the draft law on trademarks.
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
There are no special requirements.
D. G EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
Existing Law
The main criterion for the registration of a mark under the Trade Marks Act is its
distinctiveness.  Section 9(1)(d) of the Trade Ma rks Act excludes from registration a word or words
which in its ordinary signification of geographical name.
The Registry practice to date has been to refuse a trademark registration if it contains a
geographical indication.  If a word is recognised as a geographical indication, it will be refused unlessthe use is obviously fanciful.
Draft Law
The draft Trade Marks Act also contains provision prohibiting the registration of a mark if it
is likely to mislead the public as regards the geographical origin of the goods or their nature or
characteristics.
15. Please give the definition of a geographical indication in your legislation.
The draft Geographical Indications Act defines a geographical indication as "an indication
which identifies a good as originating in the territory of a country or region or locality in that territory,
where a given quality, reputation or other characteristic of the goods is essentially attributable to
geographical origin".  This definition of geographical indication complies with Article 22.1 of theTRIPS Agreement.IP/C/W/343
Page 8
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
The draft Geographical Indications Act establishes the principal that the protection is
available irrespective of registration in Ghana.  There are also provisions in the draft law which raise
the presumption that the indication is a geographical indication with respect to the meaning ofgeographical indication as stated in the draft law.  The draft law also contains provisions setting out
conditions under which the geographical indication may be used:
• That the use should be by a producer carrying on activity in the geographical area
specified in the Register;
• that the indication may be used with respect to products specified in the Register;
• thirdly, provided that those products possess the quality, reputation or other
characteristic specified in the Register.
17. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
The draft Geographical Indications Act explicitly allows civil proceedings to be instituted
identifying wines and spirits not originating in the place indicated by the geographical indication inline with Article 23.3 of the TRIPS Agreement.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of names
considered as generic in your jurisdiction.
The exceptions under Article 24 of the TRIPS Agreement have never been used in Ghana.
No suit on the use of exceptions and no list of generic names exist in Ghana.
E. I
NDUSTRIAL DESIGNS
19. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs areprotected.
Existing Law
The Textile Designs Registration Decree 1973, NRCD 213 provides a specific registration
system to protect textiles.  The Textile Designs (Registration) Decree give the copyright in a textiledesign to the registered proprietor;  renewable for a period of five years in the first instance and for
two further five years periods.
Draft Law
The draft Industrial Design Act excludes designs essentially dictated by technical or
functional considerations from protection.  This is in accordance with Article 25 of the TRIPSAgreement.
Textile Designs will be protected under the draft Industrial Designs Act.  Under the draft law
any three dimensional form or any material, whether or not associated with lines or colours, is an
industrial design where the composition form or material gives a special appearance to a products ofindustry or handicraft and can serve as a patt ern for a product of industry or handicraft.IP/C/W/343
Page 9
The draft Industrial Designs Act contain provisions facilitating the registration of designs
relating to the same class of the International Classification or to the same set or composition or
articles, which applies to textile designs and this complies with Article 25.2 of the TRIPS Agreement.
20. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Existing Law
Section 19 of the Textile Design (Registration) Decree vests in any registered proprietor the
right to institute a court action for infringement and for the court to grant in any such proceedings any
remedy to which the right holder may be entitled.
Draft Law
Section 9(1) of draft Industrial Designs Act confers the sole right to the exploitation of a
registered industrial design which include textile designs on the owner of the design.  Section 9(4) ofthe draft law confers the right to institute court proceedings on the proprietors against any person who
infringes the industrial design.  Therefore, right holders of a design can institute court action against
importers of articles bearing embodied or copied design.
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
No.  There is no such provision.
22. Please indicate for what period of time your  legislation grants protection for industrial
designs.
Industrial designs are protected for period of five years from the filing date under the draft
Industrial Designs Act.  The registration can be renewed for two further consecutive periods of five
years.
F. P
ATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
Existing Law
• Section 3(1) of the Patent Law PNDC La w 305A deals with the notion of novelty,
providing that an invention is new if it is not anticipated by prior art, that is to say if it
does not form part of the state of the art.
• Section 3(2) of the Patent Law Prior define prior art as every-thing made available to
the public anywhere in the world by means of written or oral disclosure, use,
exhibition or other non-written means provided that such disclosure occurred before
the date of filing of the application to register the patent.  A disclosure is not taken
into consideration if it occurred within six months preceding the date of application
and was due to acts performed by the applicant or his predecessor in title or it was an
evident abuse committed in relation to the ri ghts of the applicant or his predecessor in
title.IP/C/W/343
Page 10
• Section 4(1) of the Patent Law states that an invention shall be considered as
involving an inventive step if having regard to the prior art relevant to the application
claiming the invention, it would not have been obvious to a person having ordinary
skill in the art.
• Section 5 of the Patent Law states that an invention shall be considered industrially
applicable if it can be made or used in any kind of industry.
Draft Law
Section 3(1) of the draft Patent Act defines novelty as an idea not anticipated by prior art.
The draft Patent Act states under Section 3(5) that an invention shall be considered as having
inventive step if with regard to the prior art, re levant to the application claiming the invention, it
would have been non-obvious to a person having ordinary skill in the art.  "Industrial Application" isdefined under section 3(6) of the draft Patent Act, it being emphasized that industry is to be
understood in the broadest sense.
24. Please explain whether or not in your legislation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how theseexclusions are applied in legal as well as practical terms.
Existing Law
The rights of the owner of a patent have been spelt out under section 28 of the Patent Law
PNDC Law 305A.  Limitations of the rights of the owner of a patent are also provided under
section 30 of the Patent Law:
(1) The first limitation concerns acts done only for experimental purposes, that is, for
non-commercial purposes.
(2) The second limitation is the exhaustion of patent rights. Under that principal once a
patent protected article was been lawfully put on the market, the patent owner's right
in respect of the products are exhausted.  This limitation assures free circulation of
goods. Article 6 of the TRIPS Agreement does not establish which level of
exhaustion members shall adopt subject to its provisions on national treatment andmost-favoured nation treatment.  The Patent Law provides for a system of national
level of exhaustion.  This means that the rights of the owner of a patent would be
exhausted only in respect of goods that have been put on the market in the country
with his consent.
(3) The third limitation is aimed at avoiding a situation in which the exercise of the
exclusive right might be prejudicial to the public interest in maintaining free
movement of vessels.
(4) The fourth limitation concerns the term of the patent. Under the section, the term
which is ten years in the first instance, can be extended to a two five year term subject
to local working of the patent. Also in order to maintain the patent, renewal fees are tobe paid commencing from the second year.
(5) Patent rights are also affected by provisions on compulsory licensing on grounds of
public policy and on interdependence of patents.
(6) Finally, provisions on state exploitation of patented invention may also be relevant.IP/C/W/343
Page 11
It is important to note that in practical terms, this section of the law on compulsory licensing
and state exploitation of patented inventions have never been invoked before in Ghana.
Draft Law
The draft Patent Act also contains similar provisions on exclusions on patent rights.  The
exclusion can be found in sections 11(4), 12, 13 and 14.
25. Please explain whether your legislation provides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Existing Law
The 1992 Patent Law provides for exclusion of inventions on grounds of public order or
morality.  The relevant provision can be found under section 6 of the Patent Law 1992.
Draft Law
The draft Patent Act contains provisions under Section 2(d) excluding inventions, the
prevention within Ghana of the commercial exploitation of which is necessary to protect public order
or morality.  These provisions are intended to comply with Article 27.2 of the TRIPS Agreement. It is
also relevant to note that these provisions on exclusion of inventions on grounds of public morality
have not been applied in Ghana before.
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of your legislation and
explain its formulation.
Existing Law
Section l(30)(d) of the Patent Law 1992 exclud es diagnostic, therapeutic and surgical methods
from patentability.  The exclusion does not apply to products for use in any of the methods.
Draft Law
The draft Patent Act stipulates under section 2(c) that methods for treatment of the human
body by surgery or therapy as well as diagnostic methods practised on the human or animal body are
excluded from patenting.  These provisions are in accordance with Article 27(3)(a) of the TRIPS
Agreement.
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
Existing Law
Plants, animals and essentially biological processes are excluded from patentability under the
Patent Law 1992 PNDC Law 305A.  The provisions ex cluding plants animals or essentially biological
processes from patentability are stated in Section 1(3)(b).  The provisions have been formulated to
allow microbiological processes and the products to be patented.IP/C/W/343
Page 12
Draft Law
Section 2(f) of the draft Patent Act contains provisions excluding plants, animals and
essentially biological processes from patentability.  The provisions in the draft Patent Act have been
formulated to allow the patenting of non-biological and microbiological processes.  This sectioncomplies with Article 27.3(a) of the TRIPS Agreement.
28. Please describe how micro-organisms, non-essentially biological processes, microbiological
processes and plant varieties are protected in your legislation.  Please explain, in this respect, the
relevant sections of your legislation.
Existing Law
Micro-organisms, non-essentially biological pr ocesses and micro-biological processes can be
protected and are patentable under the Patent Law 1992. The term of the patent is ten years and,
subject to local working, can be extended for two five -year terms.  The relevant sections of the Patent
Law are sections 1(3)  and 31.  To explain further:
• A patent can be granted for micro-organisms, non-essentially biological processes and
microbiological process under the draft Patent Act.
• Section 2 states matters which are excluded from patent protection. Thus, micro-
organisms, non-essentially biol ogical processes and micro biological processes can be
protected.
• The term of protection under the draft Patent Act is twenty years after the filing date.
29. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.
Existing Law
• Section 28 of the Patent Law PNDC Law 305A, gives the patentee the right to
preclude any person from importing and for offering for sale of a patented invention.
The right holder can institute court proceedings against any person who imports or
offers for sale his invention without his consent.
• Section 30(b) of the Patent Law, however lim its the right of the owner of the patent to
articles which have been put on the market by the owner or with his express consent.
Draft Law
• Section 11(2) of the draft Patent Act states that the importing and offering for sale of
the patented invention can only be done with the consent of the right holder.
• Section 11(3) of the draft law gives the right holder the right to institute court
proceedings against any person who infringes the patent.
• Section 11(4) gives the right to institute proceedings against any person importing
and offering for sale of the patented invention without the owners agreement is the
owner's most important right.IP/C/W/343
Page 13
• The rights of the patent owner under the draft patent law however does not extend to
the acts in respect of articles which have been put on the market in any country by theowner of the patent or with the owner's consent.
30. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
Existing Law
The Patent Law PNDC Law 305A does not exclude protection for pharmaceutical and
agricultural chemical products.  Section 1(3) of the Patent Law specifies the list of exclusions for
patentable inventions.
Draft Law
The draft Patent Act does not exclude the protection of pharmaceutical and agricultural
chemical products. Section 2 which contain matters excluded from patent protection does include
pharmaceutical and agricultural chemical products.
31. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.
Existing Law
Under Section 28(b) of the Patent Law 1992, when the patent has been granted in respect of a
process, the owner of the patent has the right to preclude any person where a process patent has been
granted from making, importing, offering for sale, selling or stocking for any such purpose a product
obtained directly by means of the process.
Draft Law
Under Section 11(2)(b) of draft Patent Act, making. importing, offering for sale, selling and
using the product directly obtained by the patented process amount to exploitation of the patented
invention and therefore requires the consent of the owner of the patent.  Failure to obtain the consent
of the patent owner constitutes an infringement.  Thus, under section 11(3) of the law the patent
owner can institute court proceedings against the person who infringes the process patent.
32. Please explain the additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TR IPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,
please point out the relevant legislations and describe the additional conditions in detail.
Existing Law
The Patent Law, 1992 requires disclosure of the invention in a sufficiently clear and complete
manner in the description and also indications of the best mode known to the applicant for carrying
out the invention.  There are no additional conditions.  The relevant provision is Section 12(1) (a) of
Patent Law 1992.
Draft Law
Section 5(5) of the draft Patent Act requires disclosure of the invention sufficiently clear and
complete for the invention to be carried out by a person having ordinary skill in the art and also an
indication or at least one mode known to the applicant for carrying out the invention.  No additionalIP/C/W/343
Page 14
conditions exist under the draft Patent Act. These provisions satisfy Article 29 of the TRIPS
Agreement which requires sufficiently clear and comp lete disclosure for the invention to be carried
out by a person skilled in the art.
33. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
Existing Law
Section 30 of the Patent law 1992 states the limited exceptions to the exclusive rights which
are conferred by a patent.
Draft Law
Section 11(4) of the draft Patent Act sets out limitations of patent rights.  It should b e noted
that these exceptions are not contrary to the provisions of Article 30 of the TRIPS Agreement.
34. Please explain whether or not your legislation provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  Inparticular, please explain how your national le gislation considers individual merits in the
authorization of such use.
Existing Law
The 1992 Patent Law provides for compulsory licensing under sections 45, 46 and 47 under
three specific situations.  These are:
(i) Compulsory licence for non-working;(ii) compulsory licence based upon the interdependence of patents;
(iii) compulsory licence for products and process declared to be of vital importance by
the Minister.
Sections 45 and 46 of the Patent Law 1992 stipulate that licence shall be granted after being
individually considered.
Section 48 of the Patent Law also establishes that the person "satisfies the Tribunal that he has
asked the owner of the patent for a contractual licence but has been unable to obtain such a licence on
reasonable terms within a reasonable time".
It is also a precondition under Section 48 of Patent Law 1992 that the applicant offers a
guarantee satisfactory to the court to work the invention sufficiently to remedy the deficiencies which
gave rise of his request.
Draft Law
The draft Patent Act is in full compliance with Article 31 of the TRIPS Agreement with
respect to compulsory licensing.  Sections 13  and 14 stipulate that compulsory licences shall be
granted after being individually considered.  The language of sub-section 9 of section 13 requires
evidence that the owner of the patent has received a request for a contractual licence from the
applicant seeking authorisation, but that the person has been unable to obtain the licence onreasonable commercial terms and conditions within a reasonable time.  Section 14(3)(c) of the draft
Patent Act ensures that the right holder is paid adequate remuneration in compliance withIP/C/W/343
Page 15
Article 31(h) of the TRIPS Agreement.  Decisions on compulsory licences on grounds of insufficient
or unreasonable supply of the market in Ghana shall be made by the courts, subject to appellate
proceedings.  Decisions on compulsory licenses on th e grounds of public interest or infringement of
competition law are to be taken-by the Minister subject to judicial review.
35. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time.  In this context, how do you
define "reasonable period of time".  Please also explain how your legislation ensures that the use of a
compulsory licence shall be authorised predominantly for the supply to the domestic market of the
Member authorizing such use.
Existing Law
Section 48(a) of the Patent Law 1992 requires as a precondition for the person requesting for
compulsory license to "satisfy" the court that he had made a request to the owner of the patent and
was unable to obtain a licence on reasonable terms and within a reasonable time.  The words
"reasonable period of time" are not defined under the Patent Law 1992.  To the best of our knowledgeno litigation has been initiated under the Patent Law and no case law exists on the interpretation of
this section.
Non-voluntary licences may be granted either by the court or the Minister who is assigned
responsibility for patents.  Non-voluntary licences granted by the Minister are for products andprocess declared to be of vital importance to the country.  It therefore follows that the used of
compulsory license is for the domestic market.
The courts can also grant compulsory licences for non-working of the patent in the country or
for the refusal of the right holder to grant licenses on reasonable terms and thereby making theestablishment of or development of industrial or commercial activity in the country unfairly or
substantially prejudice.  The language of section 45, 46, 47 and 48 is for the supply of the local
market.
Draft Law
Section 13(a) of the draft Patent Law, requires evidence from the applicant that he made a
request for contractual license, but has been unable to obtain the license on reasonable commercial
terms conditions and within a reasonable time.  The words "reasonable period of time" have not been
defined in the draft Patent Act.  The relevant section has not been interpreted in any case law.
The draft Patent Act under section 13(11) explicitly states that the exploitation by the
Government agency or other person designated by the Minister shall be predominantly for the supply
of the market in Ghana.
The wording of Sections 41 of the draft Patent Act is clear that the court will grant a non-
voluntary licence for not working an invention in Gh ana or insufficient exploitation of the patent in
Ghana.  Therefore the use of the compulsory licence is for the supply to the domestic market.
36. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
The Patent Law 1992 does not grant additional protection after the expiration of the patent
term.IP/C/W/343
Page 16
37. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1st January 1995.
Section 412(2) of the draft Patent Act states that patents granted under the law shall remain in
force and shall be deemed to have been granted under the draft Patent Act.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Section 62 of the Patent Law provides for the use of patented process.  Sub-Sections 7 and 8
of section 11 provide for the reversal of the burden of proof in relation to process patent.  In this
respect, for infringement proceedings where the subject matter is a process for obtaining a product,
the burden is on the defendant to prove that the process used to obtain an identical product is different
from the patented process. Any new product which is identical to the patented product shall be
deemed to have been obtained by the process patent in the absence of proof to the contrary.  Theseprovisions are in full compliance with Article 34 of the TRIPS Agreement.
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.
Existing Law
Currently there is no legislation on topographies.
Draft Law
The draft Layout-Designs (Topographies) of Integrated Circuits purports to protect designs
that are original in the sense that they are the result of the creators' own intellectual efforts.  Under thedraft law integrated circuit designs are to be afforded a ten year term of protection; the rights holder is
given exclusive rights which include the right of reproduction, importation, sale and distribution for
commercial purposes.  Article 36 provisos of the TRIPS Agreement have also been provided for
under the agreement.
40. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies including
integrated circuits or other articles in which a topography is incorporated in accordance with
Article 36 of the TRIPS Agreement.
The draft law on Layout-Designs (Topographies) of Integrated Circuits provides that the acts
of importing, selling or otherwise distributing for commercial purposes the protected topographies
without the authorization of the rights holder is  unlawful. This includes reproduction whether by
incorporation in an integrated circuit or otherwise in line with Article 36 of the TRIPS Agreement.
41. Please explain how your legislation provides for the derogation from Article 36 as specified
in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to
know when acquiring an integrated circuit or an article incorporating such an integrated circuit that
it contains an unlawful topography.
The draft law provides that the effect of protection does not extend to a situation where a
person has no knowledge or reasonable grounds to know when acquiring an integrated circuit or an
article incorporating such an integrated circ uit that it contains an unlawful topography.
42. Please state the term of protection granted by your legislation to topographies.IP/C/W/343
Page 17
The term of protection proposed under the draft Layout-Design (Topographies) of Integrated
Circuits Act is ten years.
H. P ROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
The Protection against Unfair Competition Act, 2000, Act 589 protects undisclosed
information, that is trade secrets or know-how inde finitely, provided the information is secret, has
commercial value, because it is secret and has been subject to reasonable steps to keep it secret.
These provisions are in line with Article 39.2 of the TRIPS Agreement.
44. Please explain how your legislation defines undisclosed information.
Undisclosed information is not defined in the Protection Against Unfair Competition Act;  in
the Act 589, the words "secret information" are used.  Section 5(3) of the Act states that aninformation is secret if:
(a) It is not, as a body or in the configuration and assembly of its components. generally
known among or readily accessible to person within the circles that normally deal
with the kind of information in question,
(b) it has commercial value because it is secret, and(c) it has been subject to reasonable steps under the circumstances by the rightful holder
to keep it secret.
45. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
There is no definition of the data submitted to governments or governmental agencies in the
Protection Against Unfair Competition Act. 2000 Act, 589.
I. E
NFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Effective action against infringement of intellectual property rights is provided through a
combination of legislation and the common Law.  Matters relating to evidence, injunctions, damages
and other remedies including provisional measures are dealt with under the general Law of civil
procedure for all civil wrongs.
47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
The general civil laws provide for an appeal to the High Court against administrative
decisions.
48. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.IP/C/W/343
Page 18
By virtue of the rules of Court, the courts are authorised to order the production of
documents.  A party to a litigation is under obligation either automatically or upon order of the court
to give discovery of any documents which it may have in its custody, possession or control which
relate to the issues in the proceedings before the co urt.  The court also has the power to make orders at
the commencement of proceedings for the protection of evidence in those proceedings if there is alegitimate fear of such evidence being destroyed by granting an Anton Pillar Order.
49. Please quote provisions of your legislati on that authorize judges to order a defendant to
desist from an infringement.
The courts may grant relief for right holders by way of injunctions under the general
jurisdiction of the court and the various intellectual property laws.  Section 59 of the Patent Law 1992
states that on application by the owner of the patent:
"that court shall grant the following reliefs:(a) an injunction to prevent infringement where infringement is imminent or to prohibited
the continuation of the infringement once infringement has started".
Section 11(3) of the draft Act also contains the following provisions which authorise judges
to order a defendant to desist from an infringement:
"The owner of the Patent shall in addition to any other rights remedies or actions available to
the owner have the right subject to subsection (4) and section 13 to institute court proceedings
against any person who infringes the patent by performing, without the consent of the owner;
any of the act referred to in subsection (2) or who perform acts which may lead to
infringement."
With respect to imminent infringement, Section 22(2) of the draft Industrial Designs Act
states:
"On the application by:a. The registered owner;  or
b. a licensee who has requested the registered owner to institute court proceedings for a
specific relief and the registered owner has refused to do so.  The court may grant an
injunction to prevent an act which constitutes an infringement or an imminentinfringement "
50. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
The courts have general jurisdiction to awar d damages for infringement of intellectual
property rights.  Damages usually include the recovery of commercial losses associated with theinfringement on flagrancy of infringement shall be taken into account in deciding whether additional
damages should be awarded.  An award of damages would normally be accompanied by any order for
payment of legal cost incurred by the successful party.  Under such order for costs, the successful
party will normally recover a sum corresponding to the reasonable sums which were expended in the
litigation.  If such costs cannot be agreed between the parties the costs are fixed by the judge.
51. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.IP/C/W/343
Page 19
The courts have jurisdiction under the rules of court to order for payment of legal cost
incurred by the successful party. Under such or der for costs. the successful party will normally
recover a sum corresponding to the reasonable sums expended in the litigation.
52. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
The courts have jurisdiction to order defendants to deliver infringing goods and copies as well
as materials or implements used in their production. The Copyright Law allow for the seizure of
infringing goods.  There is also a provision for disposal or destruction of forfeited goods or copies by
the comptroller of custom.  The courts have inherent jurisdiction to indemnify a defendant for abuse
of the courts' process.  Where the court orders an interlocutory injunction, it will direct the plaintiff
will pay damages to the defendant.  The court may also require security for such undertaking to begiven by way of deposit of money into the court's fund or by providing a guarantee. This will
normally be the case where the plaintiff is a non-resident.
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
The courts have inherent jurisdiction to indemnify a defendant for abuse of the court's
process.  Where the court orders an interlocutory injunction, it will direct the plaintiff to give an
undertaking that if the injunction was wrongly granted against the defendant the plaintiff will pay
damages to the defendant.  The court may also require security for such undertaking to be given by
way of deposit of money into the court's fund or by providing a guarantee.  This will normally be the
case where the plaintiff is a non-resident.
54. Please explain how your legislation impl ements Article 50 of the TRIPS Agreement.
Ghana operates the common law system and therefore the courts have jurisdiction to
adjudicate on enforcement of intellectual property rights and can order provisional measures before
the full trail including the grant of interlocutory injunctions.
The court may also grant relief of the type known as an Anton Pillar Order after the case has
started.  Under this order the defendant is required to admit onto his premise a person named in the
order to search for and take any thing specified in  the order to preserve the evidence for the trial.
An application can also be made to the court for an interim award of damages.  The plaintiff
must show that it is likely that at a full trial a substantial award of damages will be made by the court
and that pending the assessment of the issues at trial there should be an interim payment.
55. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by the customs authorities.
The High Court.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
There are no proceedings to suspend the export of counterfeit goods.  However the right
holder may apply to the court for an order of injunction.
57. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.IP/C/W/343
Page 20
The courts have jurisdiction to order defendants to deliver infringing goods and copies as well
as materials or implements used in their production.  Under Section 1 of the Merchandise Marks Act
1964, it is an offence to falsely apply to goods any trade mark or any mark so nearly resembling a
trade mark as to be likely to deceive.  On conviction of the offence any goods and things of any kind
by means of or in relation to which the offence is committed may be forfeited to the state.
58. Please indicate whether or not your legislation provides for a de minimis imports exception.
There is no de minimis  imports exception.
59. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
Under Section 1 of the Merchandise Marks Act 1964 it is a criminal offence to falsely apply
to goods any trademark or any mark so nearly re sembling a trademark as to be likely to deceive.
Where a person is convicted of an offence of any goods or things of any kind by means of or in
relation to which the offence is committed shall be liab le at the discretion of the court to be forfeited.
The person who commits an offence there under is guilty of a misdemeanour.
JAPAN
A. C OPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
There are no exceptions nor exemptions from the National Treatment and Most Favoured
Nation Treatment under the Ghana Copyright Law.
SWITZERLAND
A. G EOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
No law currently exists for the protection of geographical indications.  In order to comply
with the provisions of the TRIPS Agreement a draft Geographical Indications Act is soon to be put
before Parliament.  The draft Act incorporates th e requirements of Article 22 to 24 of the TRIPS
Agreement.
The draft Act defines a geographical indication as "an indication which identifies a good as
originating in the territory of a country or region or locality in that territory, where a given quality
reputation or other characteristic of the good is essentially attributable to its geographical origin."  The
definition of geographical indication is in conformity with the definition of geographical indication inArticle 22.1 of the TRIPS Agreement.
The draft Geographical Indications Act is divided into four parts.  These are:
1. Protection of Geographical Indications;2. Registration of Geographical Indications;IP/C/W/343
Page 21
3. Special Provisions Concerning Marks
4. Regulations and Interpretations.
Section 1 of the draft Geographical Indication Act states explicitly that civil proceedings may
be instituted to prevent unlawful use of geographical indications.  Subsections 1(a) and (b) of
section 1 are in line with Articles 22.2(a) and (b) and Article 23.1 of the TRIPS Agreement enabling
parties to prevent the use of indications in a manner which would mislead the public and would also
be contrary to honest business practices within the meaning of Articles 101 of the Paris Connection or
with regard to geographical indications identifying wines and spirits not originating in the place
indicated in the geographical indication in question.  Section 1 makes it clear that the court may inaddition to issuing injunctions to prevent such unl awful use, award or grant any other civil remedies
that maybe appropriate.
Natural or handicraft products are covered by the definition of Geographical Indications in the
Act.  Example would be textiles, fruit, wines, coffee, wood and tea.
B. P
ATENTS
2. Does your legislation grant patent protection to all categories of products or are there any
exceptions?  If so, please explain in detail what kind of exceptions exist and how they comply with
Article 27 of the TRIPS Agreement.
The Patent Law 1992 grant patents protection relating to products and processes in all fields
of technology.  The exceptions to patentability are stated in section 1(3) of the law.  The exceptions
are:
a. Discoveries, scientific and mathematical theories,b. plant or animal varieties or essentially biological processes for the production of
plants or animals, other than microbiological processes and the products of such
processes;
c
. schemes, rules or methods for doing business, performing purely mental acts or
playing games;
d. methods of treatment of the human or animal body by surgery or therapy as well as
diagnostic methods;  this provision shall not apply to products for use in any of these
methods;
e. mere presentation of information;f. computer programmes.
The new draft Patent Act also grants protection for inventions relation to products and process
in all fields of technology.  However the exceptions are:
a. Discoveries, scientific theories and mathematical methods;b. schemes, rules or methods of doing bus iness, performing purely mental acts or
playing games;IP/C/W/343
Page 22
c. methods for treatment of human or animal body by surgery or therapy, as well as
diagnostic methods practised on the human or animal body;  this provision shall not
apply to products for use in any of those methods;
d. inventions, the prevention within Ghana of the commercial exploitation of which is
necessary to protect public order or morality which includes:
i. the protection of human, animal or plant life or health;  orii. the avoidance of serious prejudice to the environment;  if the exclusion is not
made because the exploitation is prohibited;
e. plants and animals other than the micro-organisms;
f. biological processes for the protection of plants or animals other than non-biological
and micro-biological processes;
g. plant varieties.
Article 27 of the TRIPS Agreement set out three exceptions to the basic rule on patentability.
These are inventions contrary to public or morality, diagnostic, therapeutic and surgical methods for
the treatment of humans or animals and plants and animals other than micro-organisms and essentiallybiological processes for the production of pl ant or animals other than non-biological and
microbiological processes.
Discoveries for example have been excluded essentially because the person who makes a
discovery has not create anything. Also schemes,  rules or methods for doing business concerns
instructions to the human mind which cannot be patented.
In line with Article 27.3(b) a sui generis  system has been provided for the protection of plant
varieties.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
The Patent Law 1992 under Section 45(1) allows compulsory licensing for non-working of
the patent.  The definition of working has been provided under Section 31(5) of the law as follows:
"A patented inventions is worked if the patented product is made or if the patented process is
used in Ghana, by any effective and serious establishment and on a scale which is reasonable
in the circumstances, but importation shall not constitute working."
The draft patent Act also contain provisions on compulsory licensing and government use
without the authorization of the right holder but ar e subject to conditions aimed at protecting the
legitimate interests of the right holder.
These conditions in the draft law aimed at protecting the legitimate interests of the right
holder are in full compliance with Article 31 of the TRIPS Agreement.  The conditions also comply
with Article 27.1 of the TRIPS Agreement which require technology whether products are importedor locally produced.IP/C/W/343
Page 23
The provisions of Section 14(1) of the draft Patent Act explicitly state that the court may issue
non-voluntary licence if the court is satisfied the patented invention is not exploited or is insufficiently
exploited, by working the inventions locally or by importation in Ghana.
4. Does your legislation make the granting of a compulsory license subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
The Patent law 1992 contain provisions on co mpulsory licensing. The provisions however do
not satisfy all the conditions enumerated in Article 31.  The draft Patent Act also has provisions for
granting compulsory licences which are in full compliance with Article 31 of the TRIPS Agreement.
Sections 13 and 14 of the draft Patent Act contain conditions under which compulsory licences and
government use or person thereby provisions of law.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
Section 62 of the Patent Law 1992 is on the presumption of use of patented process. This
section however does not fully comply with requir ements of TRIPS Article 34.  Subsections 7 and 8
of Section 8 of the draft Patent Act provide for the principle of the reversal of burden of proof in aprocess patent litigation.  The provisions are in full compliance with Article 34 of the TRIPS
Agreement.
C. P
ROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorisation of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and against
unfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for market
authorisation for his own product.  Does your legisl ation provide for exceptions to this?  If yes, under
what conditions would such exceptions apply?  Does your legislation set a specific term of protection
for undisclosed test or other data of the first applicant?
The Protection Against Unfair Competition Act 2000, Act 589, provides for the protection of
undisclosed test or other data submitted to a state agency as a condition for approving the marketing
of pharmaceutical or agricultural chemical products , which use new chemical entities.  The relevant
provision is section 5(4) which makes it an unfair competition where an act or practice results in an
unfair commercial use of secret test or data which have been submitted to a competent authority forthe purpose of obtaining an approval of the ma rketing of pharmaceutical or agricultural chemical
products, which utilize new chemical entities.  Subsection 4, paragraph b of section 5 contains
exceptions to the disclosure.  This is where it is necessary to protect the public and steps are taken to
ensure that the data are protected against unfair commercial use. The legislation on undisclosed
information does not set a specific term of protection for undisclosed test or data.
D. E
NFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective deterrents to
infringements of intellectual property rights.
The remedies provided by legislation, which constitutes deterrents to infringement of
intellectual property rights, are:
a. Imprisonment;IP/C/W/343
Page 24
b. monetary fines;
c. seizure, forfeiture ad destruction of infringing goods and materials and implements
for their production.
Trademarks
The Trade Marks Act does not provide for criminal procedures and penalties for wilful
trademark counterfeiting as required by Article 61 of the TRIPS Agreement.  However, section 1 of
the Merchandise Marks Act makes it a demeanour for falsely applying to goods any trade mark or any
mark nearly resembling a trade mark as to be likely to deceive.  Under the general jurisdiction of the
court, the courts can award damage for infringement or if the plaintiff desires an account for profit.An award for damages would normally be accompanied by an order for payment of legal costs
incurred by the successful party.  The draft Trade Marks Act makes provision for penalties with
respect to infringement and provide for a fine or imprisonment for wilful infringement.
Patents
The Patent Law 1992 specifically provide for award of damages in section 59.  The Patent
Law also provide for a fine or imprisonment of not more than 2 years for intentional infringement of a
patent.  The draft Patent Act also has provisions making intentional infringement of a patent
punishable by a fine or by imprisonment.
Industrial designs
Section 22 of the draft Industrial Designs Act provides that it is an offence to perform an act
stated in section 9 of the draft law as an infringement.  The penalty is a fine or a term of imprisonmentnot exceeding two years or both.
Layout-designs
Section 15 of the draft Layout-Designs (Topographies) of Integrated Circuits Act provides
that it is an offence to knowingly perform an act which is unlawful under section 4 of the draft law.
The penalty is a fine or imprisonment for two years. The court may order seizure, forfeiture anddestruction of layout-designs of integrated circuits or articles concerned and of any material or
implements predominant use of which has been in the commission of the fine.
Plant varieties
The draft Plant Varieties Act makes provision for a fine or term of imprisonment not
exceeding two years in relation to non-compliance or misuse of variety denomination.
Copyright
Civil and criminal remedies are provided under sections 43-45 of the current copyright law
PNDC Law 110 of 1985.  Civil remedies include action for damages, interlocutory orders such as
injunctions, Anton Pillar Orders etc.  The penal sanctions currently provided for under the 1985 law have
not proved to be deterrent enough.  The courts are in clined to apply fiscal pe nalties rather than custodial
sentences.  The new draft Copyright Bill currently before Parliament provides for enhanced criminal
sanctions - a convict can be sentenced to a maximum of 5 years imprisonment and provision has beenmade for equally punitive fines.
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.IP/C/W/343
Page 25
The Chief Justice has recently issue directives to  the effect that cases involving infringement
of intellectual property rights should be handled by the specially mechanised courts which have been
established to deal expeditiously with such issues.
E. TRADEMARKS
9. Please explain how your legislation implem ents Article 62.2 TRIPS Agreement.  Please
indicate how long it takes on average to register a trademark. Please cite the relevant provisions of
your law.
A draft trademark law is to be laid before Parliament this year.  This draft law fully complies
with obligations under the TRIPS Agreement.  On the average it takes about six months to register a
trademark.
10. Please explain in detail how Ghana protects se rvice marks and cite the relevant provisions of
law.
The Trade Marks Act does not contain provisions on service marks.  However, the draft Trade
Marks Act contains provisions on service marks.  Service marks, on registration, are protected for a
period of ten years and renewable for consecutive period of ten years under the draft Trade MarksAct.
UNITED STATES
A. G
ENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which nation treatment and most
favoured nation treatment are provided to nationals of other WTO Members.
There are no provisions in the intellectual property legislation on national treatment and most-
favoured-nation treatment.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain how the copyright law of Ghana  protects computer programs as literary
works  and complications of data as required by Article 10 of the TRIPS Agreement.
Existing Law
PNDC Law 110 was passed in 1985 and did not specifically provide for the protection of
computer programs as literary works in Ghana.  However, in practice computer programs are
protected as literary works in Ghana.
Draft Law
This defect is cured in the new copyright bill before Parliament. The bill specifies that
computer programs should be protected as literary work. The Copyright law protects compilations of
data which are original in character and it involves  some elements of creativity such as directories,
anthologies, etc.
3. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and
cinematographic works be available.  Please cite to the corresponding provision of the copyright lawIP/C/W/343
Page 26
of Ghana.
Existing Law
The current law does not make any such provision.
Draft Law
Clause 5(e) of the new copyright bill provides rentals rights for audiovisual works and
computer programmes.
4. Please describe the protection the copyright law of Ghana provides for performers, and the
term of the protection.
Existing Law
The current copyright law incorporates the protection that performers are granted under the
Rome Convention of 1961.
Draft Law
The new bill however incorporates elements of the Rome Convention and the WIPO
Phonogram and Performances Treaty (WPPT).
5. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2
requires that producers of phonograms are to have the right to authorize or prohibit the commercialrental to the public of originals or copies of their phonograms.  Please describe how the copyright
law of Ghana implements these obligations and indicate the term of protection.
Article 14.2 of the TRIPS Agreement regarding the protection of Producers of Phonograms is
embodied in the new Copyright Bill but  not in the current Copyright Law.
C. T
RADEMARKS
6. Please describe the subject matter that can comprise a trademark under the trademark law of
Ghana.
Existing Law
In the Trade Marks Act 1965, a mark is defined as follows; a mark includes a device, brand
heading, label ticket, name, signature, word, letter, numeral or any combination thereof.  Under the
Trade Marks Act, a mark must be registered in order to be protectable.  Sections 9 and 10 the Act set
out the conditions for the registration of a mark.  A mark is registrable under Section 9 of the Act if it
contains or consists of at least one of the following particulars:
(a) The name of a company, individual or firm represented in a special or particular
manner;
(b) the signature of the applicant for registration or a predecessor in his business;(c) an invented word or invented words;IP/C/W/343
Page 27
(d) a word or words having no direct reference to the character or quality of the goods
and not being according to its ordinary signification a geographical name or a
surname;
(e) any other distinctive mark.The provisions of section 10 of the Trade Marks Act provide for an alternative form of
registration based on the trademarks capability of distinguishing as compared to inherently adapted to
distinguish.
Draft Law
The draft Trade Marks Act defines a mark as any sign or combination of signs capable of
distinguishing the goods or services of one undertaking from the goods of other undertaking including
words such as personal names, letters, numerals and figurative elements.
Under the draft Trade Marks Act, a trademark is registrable if it is capable of distinguishing
the applicant's goods or services from those of others.  The mark must not be contrary to public order
or morality and also not mislead consumers or trade circles as regards source or other characteristics
of the goods.  A trademark is not registrable if it is a mark of a state or intergovernmental
international organisation except with authorisation.  Finally a mark under the draft law will not be
registered if it is a well known mark.
7. Please describe the procedure that must be followed to register a trademark in Ghana, citing
the relevant provisions of the law, and describe the rights that the owner of a registered mark can
exercise.
Existing Law
The procedure for the registration of a trademark is stated in the Trade Marks Regulation
1970, L1667.  The following are the procedure for registration of a trademark:
i. The application must be made in the prescribed form (Form TM No.2).
ii. The application must contain the following:
(a) That the application is made in Part A of the Register; (the Trade Mark
Register is divided into "Part A" and "Part B").
(b) The applicant is required to affix a representative of the mark on the Form
(Regulation 2 of LI 667).
(c) The desired classification and the respective goods.(d) The name and nationality of the entity applying for the mark.
iii. Four (4) representations of the mark.
iv. In cases where an Attorney/Agent is appointed to file an application for registration,
the form authorising the agent must be filed (TM No.1).
v. The application fee of US$150 must be submitted with the application.IP/C/W/343
Page 28
An exhaustive examination is carried out on the application by the Industrial Property Office
before acceptance or refusal.  The applicant may be invited to make amendments.  All applications are
published in the Commercial and Industrial Bulletin for possible apposition.
A mark is entered in the Register of Trade Marks if there is no opposition or where the
opposition has been disposed of.
The right given to the registered owner of a trademark are stated in sections 4 and 5 of the
Trade Marks Act which provide as follows:
Section.4(1).  Subject to the provisions of this section, and to sections 7 and 8 of this Act, the
registration (whether before or after the commencement of this Act) of a person in Part A of theregister as proprietor of a trade mark (other than a certification trade mark) in respect of any goods
shall, if valid, give or be deemed to have given to that person the exclusive right to the use of the trade
mark in relation to those goods.
Without prejudice to the generality of subsection (1) of this section the right referred to in that
subsection shall be deemed to be infringed by any person who, not being the proprietor of the trade
mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so
nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to
any goods in respect of which it is registered, and in such manner as to render the use of the mark
likely to be taken either:
a. As being used as a trade mark;  orb. in a case in which the use is use upon the goods or in physical relation thereto or in an
advertising circular or other advertisement issued to the public, as importing areference to some person having the right either as proprietor or as registered user to
use the trade mark or to goods with which such a person is connected in the course of
trade.
The right to the use of a trade mark given by virtue of this section by registration shall be
subject to any conditions or limitations entered on the register, and shall not be deemed to be
infringed by the use of any such mark as is referred to in subsection (2) of this section in any mode, inrelation to goods to be sold or otherwise traded in any place, in relation to goods to be exported to any
market, or in any other circumstances, to which, having regard to any such limitations, the registration
does not extend.
Section 5(1).  Except as provided by subsectio n (2) of this section, the registration (whether
before or after the commencement of this Act) of a person in Part B of the register as proprietor of a
trade mark in respect of any goods shall, if valid, have or be deemed to have given to that person the
like right in relation to those goods as if the registration had been in part A of the register, and the
provisions of section 4 of this Act shall have effect in like manner in relation to a trade mark
registered in Part B of the register as they have effect in relation to a trade mark registered in Part A ofthe register.
Draft Law
The draft Trade Marks Act also contain the procedure for the registration of a mark. The
procedure is as follows:
The application for registration of a mark shall be filed with the Registrar and shall contain a
request, a reproduction of the mark and a list of the goods for which registration of the mark isIP/C/W/343
Page 29
requested, listed under the applicable class or classes of the International Classification. The
application should be accompanied by the prescribed fee.
The application may contain a declaration claiming priority of an earlier national or regional
application filed by the applicant or his predecessor for any state or party to the Paris Convention orthe World Trade Organization.
The Registrar shall examine the application and if all formalities and the law has been
complied with the application is published.  Where the registration of the mark has not been opposed
within the prescribed time limit or where the regi stration of the mark has been opposed and the
opposition has been decided in favour of the applicant, the Registrar shall register the mark.
The draft Trade Marks Act confers on the owner of a trade mark the right to the use of the
mark in relation to any goods for which it has been  registered.  The registered owner of a mark also
have the right to institute court proceedings against any person who infringes the mark by using
without his agreement or who performs acts which make it likely that infringement will occur.  The
right extends to the use of a sign similar to the registered marks and use in relation to goods similar tothose for which the mark has been registered.
The registration of a mark is for a period of ten years and renewable for consecutive periods
of ten years upon the payment of the prescribed fee.
8. Please provide the length and terms of protection the trademark law of Ghana provides for a
trademark.
Existing Law
The Trade Marks Act under Section 20 provides for a term of seven years renewable
consecutively for seven year periods upon payment of the prescribed fee.
Draft Law
The draft Trade Marks Act provide for a term of ten years renewable for consecutive periods
of ten years subject to the payment of the prescribed renewal fee.
D. GEOGRAPHICAL INDICATIONS
9 . Please describe in detail how the laws of Ghana provide for the recognition and protection of
geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications so protected.
No law existed for the protection of geographical indication. In order to comply with the
TRIPS Agreement, a draft Geographical Indications Act is soon to be put before  parliament.  The draft
Geographical Indications Act incorporates Article 22 to 24 of the TRIPS Agreement.  The draft
Geographical Indications Act is divided into four parts.  These are:
1. Protection of Geographical Indications;2. Registration of Geographical Indications;
3. Special Provisions Concerning Marks;
4. Regulations and Interpretations.IP/C/W/343
Page 30
Section 1 of the draft Geographical Indications Act states explicitly that civil proceedings
may be instituted to prevent unlawful use of geographical indications.  Subsections 1(a) and (b) of
section 1 are in line with Articles 22.2(a) and (b) and Article 23.1 of the TRIPS Agreement enabling,
parties to prevent the use of indications in a manner which would mislead the public and would also
be contrary to honest business practices within the meaning of Article 10 bis of the Paris Convention
or with regard to geographical indications identify ing wines and spirits not originating in the place
indicated in the geographical indication in question.  Section 1 makes it clear that the court may in
addition to issuing injunctions to prevent such unl awful use, award or grant any other civil remedies
that maybe appropriate.
Natural or handicraft products are covered by the definition of geographical indications in the
Act.  Examples would be textiles, fruit, wines, coffee, wood and tea.
10. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Ag reement is implemented, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications for such products.
The draft Geographical Indications Act does not provide a higher level of protection for wines
and spirits.
E. INDUSTRIAL DESIGNS
11. Please describe the procedure that must be followed to obtain protection for textile designs
and cite to the relevant provisions of law or regulation.
The Textile Designs (Registration) Decree 1973 provides for a registration system,
publication of applications, an opposition procedure and term of protection of five years renewable for
two consecutive periods of five years each for textile designs.
To obtain textile design protection, Section 3(1) of the Textile Designs (Registration) Decree,
1973 NRCD 213 requires that an application in the pres cribed form must be lodged with the Registrar.
Section 3(2) of the law empowers the Registrar to make searches and request for such information as
he may think fit. Where the application for registration of a textile design has been accepted,
Section 6(1) of the Act requires that, the application is published in the Gazette for possible
opposition.  Where there is no opposition, the registrar upon payment of the prescribed fee register thetextile design as required by section 7(1) of the Act.
Textile designs are protected under the draft Industrial Designs Act. Under Section 5 of the
draft law, a person may apply to the Registrar for the registration of an industrial design. The
application for the registration shall contain among others, drawings, photographs or other adequategraphic representations of the article embodying the industrial design.
Sections 6 to 8 of the draft law require the Registrar to examine the design and if satisfied that
the requirements of the flaw have been complied with and the prescribed application fee paid, register
the textile design and publish a reference to it in the Gazette and issue to the applicant a certificate ofregistration of the textile design.
Where there is an opposition to the registration of the textile design after publication in the
Gazette, the Registrar is to seen a copy of the notice of the opposition and the applicant within the
prescribed period and in the prescribed manner is required to send to the registrar a counter-statementof the grounds on which the applicant relies for the application.  The Registrar is to hear the parties if
either or both wish to be heard and after considering the merits of the case take a decision on the
application.  The duration of the registration of a textile design as stated under section 10 is for aIP/C/W/343
Page 31
period of five years renewable for two further consecutive periods of five years upon payment of the
prescribed fee.
F. PATENTS
12. Please describe in detail the way in which the patent law of Ghana implements Article 27 of
the TRIPS Agreement, indicating any exceptions provided for, and including details regarding the
protection for micro-organisms and non-biological and microbiological processes and plant varieties.
Please cite to the relevant provisions of the law.
The Patent Law PNDC Law 305A provides patent protection in all fields of technology and a
patent term of ten years renewable subject to local working for two consecutive terms of five years.
Section 1(3) of the Patent Law provide ex clusions from patentability which include:
(a) Methods of treatment of human or animal body by surgery or therapy as well as
diagnostic methods;
(b) plant or animal varieties or essentially biological processes for the production of plants
or animals.
Section 6 of the Patent Law also excludes inve ntions of the prevention within Ghana of the
commercial exploitation of which is necessary to protect public order or morality.
The draft Patent Act provide for patent protection for any invention whether products or
processes in all fields of technology.
The draft Patent Act also allow patent rights enjoyable without discrimination as to the place
of invention. the field of technology whether the products are imported or locally produced.
Exclusions from patentability are also provided under the draft Patent Act.  The exclusions
include:
(a) methods for treatment of the human or animal body by surgery or therapy as well as
diagnostic methods practised on the human or animal body;  this provision shall not
apply to products for use in any of those methods;
(b) inventions, the prevention within Ghana of the commercial exploitation of which is
necessary to protect public order or morality, which includes:
(i) the protection of human, animal or plant life or health;  or(ii) the avoidance of serious prejudice to the environment;
(c) biological processes for the protection of plants or animals other than non-biological
processes;
(d) plant varieties.The draft Patent Act offers patent protec tion for micro-organisms non-biological and
microbiological processes.  The provisions which exclude certain inventions from patentability do notapply to micro-organisms, non-biologi cal and micro-biological processes.
The draft Patent Act is fully in compliance with Article 27 of the TRIPS Agreement.IP/C/W/343
Page 32
Plant varieties are to be protected by an effective sui generis  system.  The draft Act is soon to
be presented to parliament.
13. Please describe in detail the rights provided patent holders under the patent law of Ghana
and cite to the relevant provisions of law.
Section 28 of the Patent Law 1992 confers excl usive right to the patent owner where the
subject-matter of a patent is a product to prevent others from the acts of making, using offering for
sale, selling or importing for these purposes the product.
In the case where the subject-matter of a patent is a process, the exclusive right conferred will
prevent others from the act of using, offering for sale selling or importing for these purposes at leastthe product obtained directly by that process.
The draft Patent Act also contain provisions on the rights of the patent owner.Under the draft Patent Act, the exploitation of a patent requires the consent of the owner.  The
draft law defines exploitation to mean any of the following:
(a) where the patent has been granted in respect of a product:
(i) making importing offering for sale selling and using the products;(ii) stocking the product for the purposes of offering for sale, selling or using;
(b) where the patent has been granted in respect of process:
(i) using the process;  or
(ii) doing any of the acts referred to in paragraph (a) in respect of a product
obtained directly by means of the process.
The provisions in the draft law also empower the owner of the patent to institute court
proceedings against any person who infringes the patent by performing any of the acts referred aboveor who performs acts which may lead to infringement.
These provisions of the draft Patent Law are in full compliance with Article 28 of the TRIPS
Agreement.
14. Please describe in detail any provisions in the laws of Ghana permitting unauthorized use of
a patent, citing to the relevant provisions of law, and describe in detail the conditions under which
such use can occur.
The Patent Law 1992 contains provisions permitting unauthorised use of patent.Section 30 of the Patent Law 1992 lists the circumstances in which the law allows
unauthorised use of patent.  These includes acts done for scientific research;  acts in respect of articles
which have been put on the market in Ghana by the owner of the patent or with his express consent
and the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or
accidentally enter the airspace territory or waters of Ghana.
Unauthorised use of a patent is also permitted under the patent law, sections 45, 46 and 47
through compulsory licensing in the following circumstances:IP/C/W/343
Page 33
(i) Compulsory licensing for non-working of the patent;
(ii) compulsory licensing based upon interdependent of patents;(iii) compulsory licensing for products and processes declared to be of vital importance.The Patent Law 1992 under section 54 also allows exploitation of patented inventions by
Government or third persons authorised by Government.
The provisions for compulsory licensing are no t in full compliance with Article 31 of the
TRIPS Agreement.
The draft Patent Act contains provisions for unauthorised use of a patent.
The circumstances under which unauthorised use of a patent is permitted under the draft
Patent Act are as follows:
(a) Acts in respect of articles which have been put on the market in any country by the
owner of the patent or with the owner's consent.
This relates to exhaustion of patents rights. Under this principle once a patented article has
been lawfully put on the market, the patent owner's right in respect of that products is exhausted.  TheTRIPS Agreement in its Article 6 does not establish which level exhaustion members shall adopt,
subject to its provision on national treatment and most-favoured national treatment.
(b) The use of articles on aircraft vehicles or vessels of other countries which temporarily
or accidentally enter the airspace, territory or waters of Ghana.
This aimed at avoiding a situation in which the exercise of the exclusive right might be
prejudicial to the public interest on maintaining free movement of vessels and aircraft.
(c) Acts done only for experimental purposes relating to patent invention.
This concerns acts clone for non-commercial purposes.
(d) Acts performed by a person who in good faith, before the filing or where priority is
claimed, the priority date of the application on which the patent is granted and in
Ghana was using the invention or was making effective and serious preparations for
such use.
This limitations recognises the prior user's right established by good faith prior use or serious
preparation for such use within the territory of Ghana.  The right does not extend to use which is
deferent on nature or purpose from the actual prior use or in the case of preparations envisaged prior
use.
The draft Patent Act contains provisions on compulsory licensing and government use
without the authorisation of the right holder.
Government use and compulsory licensing of patents in the draft Patent Act are subjected to
conditions aimed at protecting the legitimate interest of the right holder.  These conditions are
contained in Article 31 of the TRIPS Agreement.  These conditions are listed below:
• An application to use the subject-matter of a patent must be considered on its
individual merit.IP/C/W/343
Page 34
• There must be an unsuccessful attempt first to obtain a voluntary licence on
reasonable commercial terms and conditions within a reasonable period.
• The licence must be non-exclusive.
• The use must be authorised predominantly for the supply of the domestic market.
• The right holder must be paid adequate remuneration in the circumstances of each
case, taking into account the economic value of the licence.
• The scope and duration of such use without the authorisation of the right holder must
be limited to the purpose for which it was authorised.
• The decision on the grant and remuneration is to be subjected to judicial review.
15. What term of protection does the patent law of Ghana provide for patents?  Please describe
any provisions for extension of the term of protection and cite to the relevant provisions of the law.
Section 31 of the Patent Law 1992 PNDC Law 305A provides for a patent term of ten years
renewable subject to local working for two consecutive terms of five years each.  There is no
extension of the term of protection under the Patent Law 1992.
The draft Patent Act grants a patent term of twenty years after the filing date of the
application for patent.  There is no extension of the patent term under the draft Patent Law.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
16. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Ghana, including the term of prot ection, and cite to the relevant provisions of law.
The draft Layout-Designs (Topographies) of Integrated Circuit Act provides protection for
layout-designs that are original in the sense that they are the result of the creator's own intellectual
effort and are not common place among creators of layout-designs and manufacturers of integrated
circuits at the time of their creation.  The term of protection is ten years instead of eight years asprescribed in the treaty on Intellectual Property in respect of integrated circuits.  The exclusive rights
provided in the draft law include the rights of reproduction, sale and importation, sale and other
distribution for commercial purposes.  The draft law also protects articles containing infringing
integrated circuits.  The provisions of the draft Layout-Designs (Topographies) of 1ntegrated Circuits
Act are in full compliance with Articles 36 and 38 of the TRIPS Agreement.
H. P
ROTECTION OF UNDISCLOSED INFORMATION
17. Please describe in detail how the laws of Ghana provide for the protection of undisclosed
information as required by Article 39.2 of the TR IPS Agreement and provide citations to the relevant
provisions of law.
The protection Against Unfair Competition Act 2000 Act 589 provide for the protection of
undisclosed information.
Section 5 of the Protection against Unfair Competition Act is based on Article 39 of the
TRIPS Agreement which deals with secret information.IP/C/W/343
Page 35
Section 5(3) of the act states that protection must apply to information that is secret, that it has
commercial value because it is secret and that is has been subject to reasonable steps to keep it secret.
Section 5(1) does not require undisclosed information to be treated as a form of property, but
it does require that a person lawfully in control of such information must have the possibility ofpreventing it form being disclosed to acquired by or used by others without his or her consent in a
manner contrary to honest commercial practices.
Under Section 8(1) of the Act, a person may seek redness for any act practice of industrial or
commercial activities that results in the disclosure, acquisition or use by another of his secret
information without his consent and in a manner contrary to honest commercial practices.  The
remedies available to a person who brings an action for acts of unfair competition include thefollowing:
a. An order of injunction to prevent the act or further acts or of unfair competition;b. a provisional order to prevent unlawful acts or to reserve relevant evidence;c. the award of damages as compensation;d. any other remedy as the court may consider fit to order.
18. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical products submitted to the government in order to obtain
marketing approval in Ghana and cite to the relevant provisions of law.
Section 5(4) of the Protection Against Unfair Competition Act. contains provisions for the
protection of undisclosed test data and other data whose submission is required by the statutory bodies
responsible for approving the marketing of pharmaceutical or agricultural chemical products which
use new chemical entities.  Exceptions to the protection of test data and other data are stated in
section 5(4)(b) under the section disclosure can be made where it is necessary for the protection of the
public and also where steps are taken to ensure that the data are protected against unfair commercial
use.
Civil remedies are available to an aggrieved person whose secret test data or other data has
been disclosed.  Section 8(1) allows the aggrieved person to bring an action for:
a. An order of injunction to prevent the act or further acts of unfair competition;
b. a provisional order to prevent unlawful acts or to preserve relevant evidence;c. the award of damages as compensation;  andd. Any other remedy as the court may consider fit to order.
Sections 5(4) and 8(1) of the Protection Against Unfair Competition Act comply with
Article 39.3 of the TRIPS Agreement.
19. Are other applicants for marketing approval for their own versions of a previously approved
pharmaceutical or agricultural chemical products permitted to rely on data submitted by the earlier
applicant?  If so, how long a period of exclusivity is given the earlier applicant before such reliance
becomes possible.IP/C/W/343
Page 36
There are no applicants for marketing approval for their own versions of previously approved
pharmaceutical or agricultural chemical products.
I. ENFORCEMENT
20. Please describe in detail the manner in which the laws of Ghana provide for effective action
against infringement of intellectual property rights as required by Article 41.1 of the TRIPS
Agreement.
The legal system of Ghana is the common law and matters relating to remedies for
infringement of intellectual property rights are dealt with under the general law of civil procedure.
The remedies that may be ordered by the judicial authorities are:
a. Injunctions;
b. damages;c. destruction or other disposal of infringing goods and materials/implements for their
production;
d. any other remedy.
Injunctions
Under the general jurisdiction of the court and under the various intellectual property laws the
courts may grant relief for infringement in the form of an interlocutory or perpetual injunction.  The
courts may grant an interlocutory injunction if the court is satisfied that there is a serious issue to be
tried and if the risk of damage to the plaintiff should the injunction not granted will not hecompensated by an order for damages provided that the plaintiff gives an undertaking to compensate
the defendant if it turns out that there was no jurisdiction for the injunction.
Damages
Under the general jurisdiction of the court and the provisions of the various intellectual
property the courts have power to award damages for infringement or if the plaintiff desires an
account for profit.  Damages usually include the recovery of commercial losses associated with the
infringement and flagrancy of the infringement shall be taken into account deciding whether
additional damages should be awarded.  An award of damages would normally be accompanied by an
order for payment of legal cost incurred by the successful party.  The order for costs is to enable the
successful party to recover a sum corresponding to the reasonable sums which were expanded in thelitigation.
Destruction or disposal of infringing goods and material/implements for the products
The courts have Jurisdiction to order defendants to deliver infringing goods and copies as well
as materials or implements used in their production.
Any other remedies
As an alternative to an award of damages the right holder may seek an account of profits
instead of damages. This requires the court to a ssess the profits which the infringer has made as a
result of his infringing act and pay this over to the right holder.
21. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order productionIP/C/W/343
Page 37
of evidence necessary to substantiate a party’s claims where that party has been unable to obtain
such evidence from the opposing party.  Please describe how the laws or regulations of Ghana
provide this authorization, citing to the relevant provisions of law or regulation.
The courts have authority to order the production of documents in court by virtue of the rules
of court.  A party to litigation has an obligation either automatically or upon order of the Court to give
discovery of any document which it may have in its custody, possession or control which relates to
the issues in the proceedings before the court.
22. Please describe in detail all of the civil remedies that are available to right holders under the
laws of Ghana, citing to the relevant provisions of law or regulation.
The intellectual property legislation and the civil law of Ghana offer the following remedies
to right holders:
a. damages including recovery of profits and expenses including attorney's fees;
b. injunctions;
c. destruction or other disposal of infringing goods and materials or implements for their
production;
d. any other remedy.
Damages
Damages can be awarded against persons who infringe intellectual property rights by the
courts under its general jurisdiction and also as provided under the intellectual property legislation.
The right holder can also request for account for profit.
The Patent Law 1992 under Section 59 specifically provides for the grant of injunctions,
damages or any other remedy provided for by law.
The draft laws on Geographical Indications, Layout-Designs (Topographies) of Integrated
Circuits, Trade Marks and Industrial Designs specifically provide for award of damages for
infringements.
The damages will usually include the recovery of commercial losses associated with the
infringement and the flagrancy of the infringement will be taken into account in deciding the quantum
of damages.  An award of damages would normally be accompanied by an order for payment of legal
costs incurred by the successful party.
Injunctions
The High Court has powers to grant an order for injunction and various intellectual property
laws also specifically provide for the grant of injunctions.  An injunction is granted where the court is
satisfied that there is a serious issue to be tried and on the balance of convenience it is an appropriate
remedy.
Destruction or other disposal of infringing goods and materials or implements for their production
The courts have jurisdiction to order defendants to deliver infringing goods and copies as well
as materials or implements used in their production.IP/C/W/343
Page 38
Any other remedy
As an alternative to an award of damages the right holder may apply for an account of profits
instead of damages.  This requires the court to a ssess the profits which the infringer has made as a
result of his infringing act and to pay this over to the right holder.
23. Please describe in detail the provisional procedures and remedies available to right holders
under the laws of Ghana, citing to the relevant provisions of law and regulation, and indicate any
condition under which a right holder may avail itself of those procedures and remedies.
(i) The Court may grant an Anton Pillar Order after the case has started.  Under this
order the defendant is required to admit onto his premises a person named in the orderto search for and take into custody any document and any things specified in the order
to preserve the evidence for trial.
(ii) The Court also has powers to adjudicate on the enforcement of intellectual property
rights and take provisional measures before the full trial including the grant ofinterlocutory injunctions.
(iii) The Court can also award interim dama ges. The right holder must show that it is
likely that at a full trial a substantial award of damages will be made by the court and
pending the assessment of the issues at trial there should be an interim payment.
J. S
PECIAL REQUIREMENTS RELATED TO BORDER MEASURES
24. Please describe in detail the procedures under the laws of Ghana that provide for border
enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent
authority and citing to the relevant provisions of law or regulation.
Section 1 of the Merchandise Marks Act 1964 makes it an offence for any person who falsely
applies to goods any trade mark or any mark so nearly resembling a trade mark as to be likely to
deceive.  The person is guilty of misdemeanour and when convicted any goods and things of any kind
by means of or in relation to which the offence is committed shall at the discretion of the court be
forfeited to the Republic.
Section 12 of the Merchandise Marks Act empowers the comptroller of customs upon
representation made to him that the use of trade mark is fraudulent to order the importer or his agent
to produce any documents in his possession relating to the goods and also furnish information as to
the name and address of the person by whom the goods were consigned to Ghana;  and the name and
address of the person to whom the goods were sent in Ghana.  The comptroller may communicate toany person whose trade mark is being infringed any information obtained from the importer of the
goods or his agent.
25. Please indicate if border enforcement is avai lable to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each form ofintellectual property, citing the relevant provisions of law.
Under section 12 of the Merchandise Marks Act, the Comptroller of Customs may seize
goods imported into the country if he is satisfied that the use of a trademark is fraudulent. The
comptroller may ask the importer of the goods or an agent of the importer to produce any document inrelation to the goods and give information about the name mid address of the person by whom the
goods were consigned to Ghana and the name and address of the person in Ghana to whom the goods
were consigned.  Failure to comply with this request is an offence and renders the defaulter liable to a
fine.IP/C/W/343
Page 39
26. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent
authorities can act ex officio.  Please explain whether the competent authorities in Ghana are
empowered to act ex officio and, if so, please iden tify the intellectual property areas subject to ex
officio action.
There are no provisions for competent authorities to act ex officio .
K. CRIMINAL PROCEDURES
27. Please describe in detail how the laws of Ghana implement Article 61 of the TRIPS
Agreement that requires Members to have criminal  procedures and penalties, including imprisonment
and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademarkcounterfeiting and copyright infringement on a commercial scale.  Please cite to the relevant
provisions of law and regulation.
The draft Trade Marks Act provides for criminal sanctions for intentional infringement of a
trademark.  Under the draft Law, a person who knowingly infringes a trademark is guilty of anoffence punishable by a fine or by imprisonment for a term of 2 years.
28. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and
destruction of infringing goods and any materials and implements the predominant use of which has
been the commission of the offence.  Please describe the provisions in the laws of Ghana that providefor such remedies, and describe the circumstances in which those remedies would be imposed, citing
to the relevant provisions of law or regulation.
 The courts have jurisdiction to order defendants to deliver infringing goods and copies as
well as materials or implements used in their production.
There is also a provision under section 1(3) of the Merchandise Marks Act 1964 for the
forfeiture of any goods and things of any kind by means of which an infringement of trademarks is
committed.
29. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions ofthe laws of Ghana that provide for such procedures and remedies, citing to the relevant provisions of
law or regulation.
Section 72 of the Patent Law 1992 provides for a fine and imprisonment of not more that two
years or both for international infringement. The Merchandise Marks Act, 1962 also containsprovisions making false application to goods of any trade mark a misdemeanour. Under the draft
Trade Marks Act wilful infringement of a trademark, is an imprisonment for a term of two years.
L. S
TATISTICAL QUESTIONS
30. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for 2000, including the number of cases filed;  injunctions issued;  infringing products seized;
infringing equipment seized;  cases resolved (i ncluding settlement); and the amount of damages
awarded.
The current Copyright Law provides civil, criminal and arbitration settlement remedies for
copyright infringement. The stakeholders as well as the Copyright Office and the Law enforcement
agencies ensure that the law is enforced.  However data in this area is yet to be compiled.IP/C/W/343
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31. Please provide statistical information related to  criminal enforcement in the area of copyright
piracy and trademark infringement for 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid and
whether the jail term was actually served or was suspended) and any other information establishingthat the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Raids are effected upon information by the Copyright Monitoring Team and in collaboration
with the police.  However the Copyright Office has put into place an authentication/anti-piracy system
of adhesive labels which are used to authenticate genuine as against pirated musical works.  The
Monitoring Unit of the Copyright Office regularly monitors the application of the authentication
devices for musical works.  Regular raids are also organized for literary and audiovisual works by thenational anti-piracy committees.  Those convicted of infringement are often given fiscal sentence.
However a court recently sentenced a Copyright infringer to six months imprisonment.  No authentic
statistics arc immediately available.
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